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 the Act

Between:

Jana Sullivan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jan Dymond, Vice-Chair

APPEARANCES:

For the Appellant: Jana Sullivan, Self-Represented

For the Respondent: Leila Pereira, Agent

Heard by teleconference: January 13, 2025

OVERVIEW

1Jana Sullivan (the “appellant”) appeals the 45-day impoundment of a 2020 Ford SRW motor vehicle under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle is registered to the appellant under her property management company, CJ’s Property Services. The vehicle was impounded on December 24, 2024. At the time of the impoundment, Christopher Sedak (“C.S.”) was driving the vehicle while his licence was under suspension resulting from a prescribed Criminal Code conviction.

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

ISSUES TO BE DETERMINED

3Section 50.2 of the Act provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section limits the grounds upon which the Tribunal can order the release of the vehicle. The appellant’s appeal is based on whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.

RESULT

4For the reasons that follow, I find that the appellant has failed to establish that the impoundment will result in exceptional hardship in accordance with section 50(3)(d) of the Act and the relevant regulation. I confirm the impoundment of the motor vehicle.

ANALYSIS

Has the appellant established that the impoundment will result in exceptional hardship?

5I find that the appellant has not established exceptional hardship under the Act and the appeal must be dismissed as a result.

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), 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 respondent presented evidence that the vehicle was stopped by police while it was being driven by C.S. whose licence was suspended due to a prescribed Criminal Code conviction. I am satisfied that the vehicle was validly detained in order to be impounded.

12The appellant submits that the impoundment is causing exceptional hardship in the form of financial loss to the appellant and employment losses to their seasonal employees.

13The appellant testifies that the impounded vehicle is outfitted with a plow and salter and is used exclusively to deliver contracted snow plowing and salting services for four commercial properties. The appellant submits that the impounded vehicle is the only vehicle owned or leased by the company that is capable of plowing and salting.

14The appellant further testifies that, in the weeks since the impoundment, they have not been able to deliver the contracted services and, in order not to lose their client’s business, have subcontracted the work to another firm. The appellant testified that CJ Property Services charges their client $2,000.00 per snow event per property, and that the subcontractor is charging the appellant $2,800.00 per snow event per property. The appellant calculates their financial loss to date to be approximately $25,000.00 to $27,000.00. They estimate their total loss to the end of the impoundment period could be as high as $80,000.00 depending on the number of snow events. The appellant did not submit evidence supporting the loss analysis.

15The appellant adds that the financial hardship extends to the seasonal employees who would normally be employed to assist in snow clearing and that the subcontractor is not providing work to the appellant’s employees. The appellant did not submit evidence to confirm that the impacted employees have not been able to find other seasonal work.

16The appellant agrees that they have access to other vehicles, namely a 2021 Tesla and a 2021 Dodge RAM as well as two other vehicles owned by family members who reside with the appellant and the driver. The appellant acknowledges that they have been able to use these vehicles to obtain day-to-day necessities such as groceries and to attend personal appointments.

17The respondent submits that only if there is no alternative, can economic loss be considered, and that the availability of other vehicles for the appellant’s day-to-day needs means that the appellant has not met her onus to establish that no other vehicle is available.

18As indicated above, the Act permits impacts of an impoundment such as economic loss/financial hardship to be considered only under limited circumstances and only if there is first a finding that no alternative vehicle is available.

19I have considered the submissions of both parties and find that the appellant has not met their onus to show that there is no alternative to the impounded vehicle available as required under s.10(4). I accept that the appellant may not own an alternative vehicle capable of performing the work of the impounded vehicle; however, the appellant has been able to retain their contract by hiring a subcontractor. I recognize that the subcontracting arrangement may result in a financial loss to the appellant; however, I find that by contracting out the work, the appellant has been able to make arrangements to do without the vehicle during the impoundment period as described under s.10(4). In addition, she has been utilizing two alternative vehicles to complete her daily tasks and attend personal appointments.

20I find that the appellant has not met her onus to establish that there is no alternative to the impounded vehicle because she has been able to make alternative arrangements to do without the vehicle during the impoundment period.

21As a result, I find the appellant has not proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act must fail.

ORDER

22On the basis of the evidence presented at the hearing and the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.

Jan Dymond

Vice-Chair