Licence Appeal Tribunal File Number: 16679/MVIA

In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an Impoundment of a Motor Vehicle pursuant to section 55.1 of the Act .

Between:

1803454 Ontario Inc.

Appellant

and

The Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Jan Dymond

APPEARANCES:

For the Appellant:

Ellen Rinn, Co-Owner of Appellant

For the Respondent:

Sadia Ashraf, Representative

HEARD: By teleconference

February 13, 2025

OVERVIEW

11803454 Ontario Inc., the appellant, appeals the 45-day impoundment of the appellant’s 2008 GMC 5500 motor vehicle, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on January 30, 2025. At the time of the impoundment, Ryan Keefe (“the driver”) was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

3The issue in dispute is:

i. Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the Act?

RESULT

4I find the impoundment will result in exceptional hardship, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle.

ANALYSIS

I find the impoundment of the vehicle will result in exceptional hardship.

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6The burden is on the appellant to prove that, on a balance of probabilities, the impoundment will result in exceptional hardship as defined in the Act and regulations.

7Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

8Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. 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.”

9If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will be dismissed.

10According to s. 10(3) of the Regulation, if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11The Registrar provided evidence confirming that the driver’s licence of the driver of the vehicle at the time it was detained for the purpose of impounding the vehicle was under suspension resulting from a criminal code conviction.

The appellant does not have any alternatives to the impounded vehicle.

12I find that the appellant has demonstrated, on a balance of probabilities, that there is no alternative to the impounded vehicle and that the appellant cannot make arrangements to do without the impounded vehicle.

13I find that the appellant has demonstrated that they have considered and inquired into every reasonable option that could eliminate or adequately mitigate loss of the impounded vehicle during the period of impoundment and that there is no alternative to the impounded vehicle.

14Ms. Rinn testifies that she and her husband John Dimech own the appellant. She testifies on the appellant’s behalf that the impounded vehicle is used exclusively to conduct the company’s business activity of foam insulation installation. She testifies that the vehicle is equipped with a spray foam machine, hoses, a pressure generator and chemical barrels and that it is the only vehicle so equipped to which the company has access.

15The registrar confirms that the impounded vehicle is the only vehicle registered to the owner.

16Ms. Rinn further testifies that the appellant is unable to operate its business without the impounded vehicle. It is also her testimony that key equipment is built into the truck and cannot be removed to be installed in another vehicle.

17Ms. Rinn on behalf of the appellant testifies that, to her knowledge, vehicles equipped with the type of equipment its’ business requires are not available on a rental basis.

18Ms. Rinn testifies that doing without the vehicle is resulting in a 100% loss of business and submits, therefore, that making arrangements to do without the impounded vehicle is not a reasonable option.

19The respondent submits that the appellant has not met its onus as it has access to two personal vehicles owned by the company’s owners, Ms Rinn and Mr. Dimech - a 2020 Kia and 2022 GMC. The appellant acknowledges that the impoundment has not impacted the business owners’ personal needs; however, it submits that neither vehicle can be equipped to replace the impounded vehicle.

20I find that the unique purpose-built features of the impounded vehicle rule out as alternatives the usual reasonable options such as renting or borrowing a vehicle and, on a balance of probabilities, that the appellant has met its burden under s.50.3(3)(d) of the Act to demonstrate that no alternative to the impounded motor vehicle is available.

The impoundment will likely result in financial and economic loss.

21I find the impoundment has resulted and will continue to result in financial loss and economic loss.

22The appellant submits that the impoundment will cause exceptional hardship in the form of financial and economic loss under s. 10(2)(b) of the Regulation.

23In order to consider financial and economic loss, Section 10(3) of the Regulation requires an owner to demonstrate, on a balance of probabilities that they satisfy six criteria, namely:

(a) that no alternative to the impounded vehicle is available;

(b) that the loss will be immediate, significant and lasting;

(c) that the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) that the impact of the loss,

(i) will be on a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause 10(2)(b),(c) or (d) of the Regulation.

24I find the criteria under s. 10(3) of the Regulation are conjunctive; in other words, an appellant must demonstrate, on a balance of probabilities that they satisfy all of the criteria; however, clearly a corporation cannot be a person for the purposes of sections 10(3)(c) and (d) of the Regulation, because the impact of the loss is to be upon a “person ordinarily transported by the motor vehicle.” Only natural persons can be “transported by” a vehicle, not corporations.

25Ms Rinn testifies that the insulation installation business carried on by the appellant is a small business, and that it is the only source of income for the business owners, who are herself and her husband. The appellant explained that Mr. Dimech normally drives the vehicle and installs the foam insulation while Ms. Rinn looks after the administrative aspects. Accordingly, when considering the applicability of sections 10(3)(c) and (d), I have considered the impact on Mr. Dimech as a person who is normally transported by the motor vehicle and whose only income is derived from the company.

26Mr. Dimech provided testimony as a witness. He testifies that the business would normally be contracted for minimum of 2 to 3 days per week at this time of year with gross revenues of between $500.00 and $1,200 per day. He explained that the nature of their business is that foam installation is only one component of a building or renovation project and that they are usually required to complete work on a short turnaround time – often within one day to one week of being contacted. Mr. Dimech testifies that they had immediate losses on the day of the impoundment when they were unable to complete two jobs and that they lost additional work on the books for that week as customers were unable or unwilling to postpone work.

27Mr. Dimech testifies that, since the impoundment, the company has been unable to respond to any new contracts including turning down a $40,000.00 job that would have had to have been undertaken during the impoundment period.

28Based on this evidence, I find the financial or economic loss upon Mr. Dimech from this lost work to be immediate, significant and lasting.

29I also find the financial impact of the impoundment fees to be immediate, significant, and lasting because they must be paid out of profits and therefore permanently reduce the income available to Mr. Dimech. The appellant submitted evidence showing the impoundment fees for the type of vehicle that was impounded are $400.00 per day and that, with the towing fees, the 45-day impoundment fees will be approximately $20,000.00 plus taxes in addition to the lost business revenue.

30I find that the appellant has met its onus to demonstrate, on a balance of probabilities that the impoundment is causing and will continue to cause exceptional hardship in the form of financial and economic loss because:

(i) there is no alternative to the impounded vehicle;

(ii) I find the testimony of the witnesses to be credible and accept their testimony that the lost contracts, contract opportunities, and associated revenue to be between $1,500.00 and $3,500.00 per week and that this revenue cannot be replaced because the turn-around time to accept and complete work is very tight. The business is not in a position to self-generate additional days of work to make up for the days lost due to the impoundment. If find, therefore that these financial losses are immediate and lasting.

(iii) the losses are significant because they are the only source of income for the business owners, including Mr. Dimech, who is ordinarily transported by the vehicle to carry out the appellant’s business;

(iv) the impact of the impoundment fees is immediate, significant and lasting on Mr. Dimech. The fees will have to be paid by the company out of profits, further reducing the amount available for distribution as income to Mr. Dimech.

(v) Mr. Dimech, as the person who is the usual driver of the vehicle, is directly impacted by the loss of business income caused by the impoundment and was not the driver whose licence suspension resulted in the impoundment as required by s.10(3)(c) and (d) of the Regulation;

31The respondent submits that the impoundment is an inconvenience rather an exceptional hardship because the appellant has been able to conduct some aspects of the business, i.e. responding to inquiries about availability and request for quotes. The respondent also submits that the impoundment has not resulted a threat to the health and safety of an individual who may rely on the impounded vehicle. The respondent requests that the Tribunal confirm the impoundment.

32For the reasons indicated above, I have determined that the appellant has no alternative to the impound vehicle during the period of impoundment. Further, I find the impoundment will result in immediate, significant, and lasting financial loss and economic loss to a person normally transported by the vehicle. The impoundment will therefore result in exceptional hardship.

CONCLUSION

33I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

ORDER

34Pursuant to s.50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.