2020268 Ontario Limited o/a Victor Ferreira v. Registrar of Motor Vehicles, 2024 CanLII 23478

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15686/MVIA

In the matter of an appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

2020268 Ontario Limited o/a Victor Ferreira Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Victor Ferreira and Ricardo Lopes, owners Wayne Phillips, employee

For the Respondent: Leila Pereira, Representative

HEARD: March 7, 2024

OVERVIEW

12020268 Ontario Limited o/a Victor Ferreira, the appellant, appealed from the impoundment of its 2015 GMC truck, (the “vehicle”), on February 22, 2024 for 45 days. At the time it was impounded, the appellant’s vehicle had been stopped by the police and Wayne Phillips, an employee of the appellant (the “driver”), was driving it in contravention of a condition that prohibits him from driving a motor vehicle that is not equipped with an ignition interlock device.

2The appellant appeals on two grounds. The first ground is that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then subject to a condition because he had taken steps to have the ignition interlock device and condition removed from his licence. The second ground is that the impoundment will result in exceptional hardship because the vehicle is needed for the driver to transport eight people to job sites, and, without the vehicle, these eight people cannot work for the appellant.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the driver’s licence of the driver subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA at the time the vehicle was detained to be impounded?

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of Ontario Regulation 631/98 (“Regulation”)?

RESULT

4I find that the driver’s licence of the driver at the time it was detained in order to be impounded was subject to a condition that prohibits him from driving a motor vehicle that is not equipped with an ignition interlock device. I also find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (b.1), (c) and (d) of the HTA. Specifically, the appellant appeals on grounds (b.1) that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then subject to the condition described in paragraph 2 of subsection 55.1(1), and on ground (d), that the impoundment will result in exceptional hardship.

7Paragraph 2 of subsection 55.1(1) provides for impoundment of a vehicle when it is being driven by a person in contravention of a condition on his or her driver’s licence under a conduct review under s. 57 that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.

Issue 1: Was the driver’s licence of the driver subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA at the time the vehicle was detained to be impounded

8The driver, the appellant’s sole witness at this hearing, testified that he was driving the vehicle when it was stopped by the police and subsequently impounded. The driver testified that he thought his driver’s licence is no longer subject to the ignition interlock condition because he believed he had done everything he needed to do to have the condition removed from his driver’s licence, and in fact had the ignition interlock device removed from his vehicle.

9However, in cross-examination the driver admitted that he received a August 24, 2021 letter from the Ministry of Transportation (“MTO”) Driver Improvement Office titled “Requirements for Removal of Ignition Interlock Condition” which set out the information MTO required him to provide and described what the Ministry would do if the information was not received as follows: “The ignition interlock condition will remain on your licence. You must only drive vehicles that are equipped with an approved ignition interlock device, or be subject to penalties under the Highway Traffic Act.”

10The driver testified that he sent to MTO the information required by the August 24, 2021 letter and that he has done “everything” he was required to do by MTO in this letter, but did not bring forward any documentation to establish this. He stated that the condition remains on his driver’s licence because the MTO “doesn’t have their act together.” The driver’s testimony on this point is not reliable. It is not supported with documentation demonstrating that he has complied with the MTO requirements for removal of the ignition interlock condition from his driver’s licence. Further, the driver’s testimony is contradicted by the Registrar’s records filed before me, which reflect that the condition remains on his driver’s licence.

11The driver also testified that an MTO employee, Mr. Sookram, told him to use his driver’s licence with the condition on it. This testimony is unhelpful hearsay. Firstly, there is no corroboration, documentary or otherwise, that Mr. Sookram made this statement to the driver, and as a result, I do not accept on a balance of probabilities that the statement was made. Secondly, even had Mr. Sookram made such a statement, this would not change the fact that his driver’s licence remained subject to the condition.

12The driver filed a transcript of a December 5, 2023 proceeding in the Ontario Court of Justice at which a charge against him for driving while disqualified was withdrawn. This transcript is not helpful in this appeal as it relates to the withdrawn charge.

13Contrary to the testimony of the driver, the records filed by the Registrar make it clear that at the time the vehicle was detained to be impounded his Ontario driver’s licence was subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA, specifically a prohibition on driving a vehicle unless equipped with an ignition interlock device, and I so find.

14I find that the appellant has failed to prove on a balance of probabilities that the driver’s driver’s licence was not subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA at the relevant time.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

15I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

16Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

17Only if the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), must I consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

18I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle.

19Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

20I find that the appellant has not established that there is no alternative to the impounded vehicle.

21The driver testified that the impoundment will cause exceptional hardship to the appellant because it needs the vehicle for him to transport eight people to the appellant’s job sites, and, without the vehicle, these eight people cannot work for the appellant. In cross-examination the driver conceded that the appellant owns other vehicles but testified that the other vehicles are being used on other job sites and not available for the eight employees that he supervises.

22The testimony of the driver and the records filed by the Registrar establish that the appellant owns 17 other vehicles. As a result, I find that alternative transportation is available to the appellant during the impoundment period to transport employees to its job sites, albeit with some re-arranging of schedules. Inconvenience is not a factor which the Tribunal can take into consideration.

23I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle, so I have not considered financial loss.

24I find that the appellant has alternatives to the impounded vehicle available during the impoundment period, namely the other 17 vehicles it owns.

Conclusion

25The appellant has not established either of its grounds of appeal. The evidence is clear that the driver’s licence of the driver was subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA, specifically ignition interlock condition, at the time the vehicle was detained to be impounded.

26I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation. The appellant has an alternative to the impounded vehicle.

ORDER

27Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.