Precision Power Sports v. Registrar of Motor Vehicles, 2024 CanLII 67357

Licence Appeal Tribunal

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 pursuant to Section 55.1 of that Act

Between:

Precision Power Sports Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Mark Burdett, General Manager

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: July 11, 2024

Overview

1Precision Power Sports (the “appellant”) appeals the 45-day impoundment of its 2021 Can Am Defender (the “vehicle”) on May 22, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by M.E. (the “driver”) on whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on May 30, 2024.

Preliminary Issue

3The Registrar of Motor Vehicles (the “respondent”) raised the preliminary issue of whether the Tribunal has jurisdiction to consider the appeal of the appellant as the appellant was not the owner of the vehicle at the time of the impoundment.

4The respondent relies upon the Notice to Registrar (“NTR””) which lists the owner of the vehicle at the time it was impounded as Darren Douglas McIlmoyle-Duncan. The Registrar also relies upon a Notice of Impoundment and Release (“NOIR”) and a VIN By Date search, both dated May 22, 2024, which also show Darren Douglas McIlmoyle-Duncan as the owner of the vehicle.

5The respondent also presented a VIN search of the vehicle dated July 8, 2024 which shows that Precision Cycle Works Inc. o/a Precision Power Sports as the registered owner of the vehicle.

6The respondent submits that, pursuant to s. 50.2 of the Act, the owner of a motor vehicle that is impounded under section 55.1 may appeal the impoundment to the Tribunal.

7The respondent submits that, as the appellant is not the owner of the vehicle at date of the impoundment, the Tribunal has no jurisdiction in which to consider this appeal.

8The appellant agreed that, at the date of the impoundment, the registered owner of the vehicle was Darren Douglas McIlmoyle-Duncan. The appellant submits that, at that date, Mr. McIlmoyle-Duncan was a customer of the appellant and had left the vehicle under the appellant’s possession for repairs. After the impoundment, the appellant transferred the vehicle into its name on May 29, 2024.

9The appellant submits that while the vehicle was in its possession, and before the transfer of the vehicle, that it had the care and control of the vehicle and the vehicle was, at that time, covered under the appellant’s insurance.

10The respondent submits that, pursuant to s. 50.2(11), the definition of owner under section 50.2 of the Act is “each person whose name appears on the certificate of registration…”

11It is clear from the NTR, the NOIR and the VIN By Date search presented by the Registrar, the owner of the vehicle pursuant to s. 50.2(11) at the time of the impoundment was Darren Douglas McIlmoyle-Duncan, not the appellant. It is also clear from the VIN search of July 8, 2024 the appellant is the current owner of the vehicle.

12After reviewing and considering the above-noted sections of the Act, I am not convinced that the appellant, who is the current owner of the vehicle and owner for the majority of the impound period, is precluded from appealing the impoundment of the vehicle it owns under section 50.2 of the Act. The Act does not state, either in s. 50.2(1) or (11) that only the owner of the impounded vehicle as it was on the first day of the impoundment can appeal to the Tribunal. Indeed, there would be no reason for a former owner of a vehicle to appeal its impoundment, even it if was impounded under their ownership.

13I agree with Adjudicator Ramdayal in Feltz v. Registrar of Motor Vehicles, 2023 CanLII 113732 (ON LAT) in which he stated, “…as the [current] owner of the vehicle, the appellant may suffer loss, financial or otherwise, and should be afforded the opportunity to appeal the impoundment on one or more of the grounds available to him”.

14I also concur with Adjudicator Hans in Lammers v. Registrar of Motor Vehicles, 2024 CanLII 38459 (ON LAT) in which Adjudicator Hans stated that, “In my view no other person other than the appellant [whose vehicle was impounded while it was still registered under a previous owner] would meet the definition of “owner” under the Act in order to have standing”. She further stated that “the crucial time for [the appellant] to be the owner is the time that the appeal is heard.

15While the appellant was not the owner of the vehicle at the time of the impoundment, it became the registered owner of the vehicle during the impoundment period and it is the registered owner at the time of this appeal. I conclude that the appellant is the owner of the vehicle pursuant to sections 50.2(1) and (11) of the Act and that the Tribunal has jurisdiction to hear the appeal of Precision Power Sports of the impoundment of the vehicle.

ISSUES

16The issue to be determined is:

i. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

17On the evidence before me at the hearing, I find that the appellant has not demonstrated on a balance of probabilities that the impoundment will result in exceptional hardship.

ANALYSIS

The impoundment will not result in exceptional hardship as that term is defined in the Act and the Regulation

18Section 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. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to 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 vehicle during the impound period. If I find that there is an alternative to the impounded vehicle, then the appeal will fail and I need not consider any other requirements of the test for exceptional hardship.

19If it is found there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle or 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. The Tribunal is prohibited from considering whether the impoundment will result in inconvenience to any person. It may consider financial or economic loss, but only if the loss will be immediate, significant and long-lasting and the impact will be on a person ordinarily transported by the vehicle other than the suspended driver.

20The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped while being driven by M.E. on whose licence was suspended due to a criminal conviction.

21The appellant submits that the impoundment will result in exceptional hardship due to the financial costs of the impoundment.

22The appellant is the general manager of a recreational vehicle retailer. A RIN Record showed that the appellant was the registered owner of 312 active vehicles. The appellant did not dispute that amount. The appellant submitted that the costs of the impoundment as well as other costs incurred in assisting the original owner by purchasing the impounded vehicle after the impoundment are difficult for the appellant to incur.

23The respondent submits that the appellant does have access to reasonable alternatives to the vehicle, and therefore does not meet the threshold test for exceptional hardship.

24I agree with the respondent. The purpose of the vehicle to the appellant is that of resale, of which there are many alternatives. Even should that not be the case, the appellant testified that the impoundment of the vehicle will not create a threat to the health or safety of any person ordinarily transported by the vehicle. Also, even though the costs of the impoundment are difficult for the appellant, it also testified that the impoundment will not cause an immediate, significant and long-lasting economic impact.

CONCLUSION

25Given the above, I find that appellant has failed to establish on a balance of probabilities that it meets the test for exceptional hardship as that term is defined in the Act and the Regulation.

I ORDER AS FOLLOWS:

26For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.