Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2012-04-11
FILE: 7287/MVIA
CASE NAME: 7287 v. Registrar of Motor Vehicles
Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.
926749 Ontario Ltd. Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: ANTOINE AOUAD, M.D., Member
APPEARANCES: For the Applicant: MICHAEL PHILLIPS, Agent representing the Applicant
For the Respondent: RUSSELL MCKNIGHT, representing the Registrar of Motor Vehicles
Heard in Toronto By teleconference: April 5, 2012
REASONS FOR DECISION
A hearing was held on April 5, 2012, at Toronto, Ontario, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2005 GMC SIE (the “vehicle”)
Date of Appeal: March 19, 2012
The matter came before this Tribunal on April 5, 2012 and proceeded as an electronic (teleconference) hearing.
All documents were entered into evidence as exhibits with the consent of both parties
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #2. The Applicant is a corporation. In a typewritten statement, dated March 17th, 2012, the Applicant’s Agent pleads for the return of the vehicle on the ground that loss of the vehicle will cause “unfair financial hardship,” as the vehicle is “attracting interest while it remains unsold”.
The Applicant’s director and manager, who was called as witness for the Applicant, affirmed that the Applicant is the owner of the impounded vehicle, and explained that the vehicle was leased to an old client of the company. According to the witness, the lessor has been in breach of contract since January, and various contact attempts have failed. The witness testified that the loss of payments and the impoundment has cost the business a considerable sum of money.
In cross-examination, the witness attested that the business has been operating for about ten years as both a car sales dealership and a leasing company. The witness further described the steps taken by the company in the event of default, which are repossession of the vehicle and civil suits brought against defaulters.
The witness confirmed that at the present time the company owns a number of vehicles, which may be sold or leased.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail to stop for police officer under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
The Registrar did not call any witnesses.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is, final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
The Applicant here appeals on the basis of section 50.2(3)(d).
The Shorter Oxford English Dictionary, 3rd ed. defines “exceptional hardship” as follows:
Exceptional: Of the nature of or forming an exception; unusual.
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:
(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
In closing, the Applicant’s Agent stated that the business run by the Applicant is a “niche” business in the area as it mainly assists people with low credit ratings. He pointed out that although the Applicant has recourse to sue for damages, the rate of success is low.
The Applicant’s Agent maintained that the Applicant’s staff exercised “due diligence” in trying to recoup the vehicle, and emphasized that the business has not faced this situation in the past and therefore it is not understood.
The position of the Applicant is that the vehicle should be returned with the understanding that steps would be taken to ensure a similar situation would not recur. As it is, the Applicant’s Agent argued that the Applicant did everything possible to exercise due diligence, and that the impoundment and the cost of impoundment would definitely constitute exceptional hardship.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
According to the Registrar’s Agent there are alternate vehicles available to the Applicant, which are available for purchase or lease.
The Registrar’s Agent stated that the law provides for recovery of impoundment costs from the suspended driver. Further, the Tribunal may not consider the impoundment fee, and any losses incurred would have to be considered as significant ant long lasting. The Registrar’s Agent suggested that there is no way of knowing whether the lessor intends to pick up the vehicle and pay the impoundment fees herself.
In rebuttal, the Applicant’s Agent informed the Tribunal that the lessor has no insurance and asked that, in order to avoid further charges to the Applicant, the vehicle be released to the impoundment facility owned by the Applicant.
The onus is on the Applicant’s Agent to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
It is clear from the evidence that the business owns several vehicles, which may be sold or leased.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses. As there was no documented proof that the Applicant’s losses are significant and long lasting, the Tribunal is unable to find in favour of the Applicant
The Tribunal agrees with the Applicant’s Agent that due diligence was exercised in the attempt to recover the vehicle, nonetheless “due diligence” was not selected as the grounds for appeal. Further, the Tribunal has no jurisdiction to release the vehicle to an impoundment facility owned by the Applicant.
As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., presiding Member
Released: April 11, 2012