Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7315/MVIA
CASE NAME: 7315 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 subsection 55.1(3) of the Act.
Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Applicant, self-represented, via telephone
For the Respondent: Russell McKnight, Agent representing the Registrar of Motor Vehicles
Heard in Toronto: April 12, 2012
REASONS FOR DECISION
A hearing was held on April 12, 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 “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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: 2000 ACUR ELP (the “vehicle”)
Date of Appeal: March 29, 2012
The matter came before this Tribunal on April 12, 2012. As the Applicant was not in attendance at the time set for the hearing he was called on the telephone. The Applicant informed the Tribunal that he had not received a Notice of Hearing. The Tribunal asked the Applicant if he wanted to proceed with the hearing with his attendance by telephone. He elected to do so. The Tribunal confirmed that the Applicant had received disclosure of all of the documents the Registrar intended to rely on at the hearing and the hearing then proceeded.
After the conclusion of the hearing, a friend of the Applicant telephoned to protest the proceedings due to lack of notice. It was explained that the Applicant had consented to the hearing. Nonetheless, in all fairness, the Applicant was granted until the end of the day Friday, April 13, 2012, to submit an objection in writing. No such submission was received until April 18, 2012.
On April 18, 2012, the Tribunal received a faxed copy of a letter allegedly mailed by the Applicant to the Tribunal on April 13, 2012. In the letter, the Applicant states that he received the Notice of Hearing on April 13, 2012, and that it had been his intention to have a friend assist him at the hearing. He asked that a new hearing be scheduled. He had raised none of these issues at the outset of the hearing. The Tribunal concludes that there is no basis for granting a new hearing on two grounds.
The first ground is that the Applicant was able to fully address all of the issues raised in his appeal in his telephone appearance on April 12, 2012. He was not hampered in any way in addressing the Tribunal or responding to questions from the Registrar’s representative by any language barrier notwithstanding that English is not his native tongue. There has been no denial of natural justice or procedural fairness.
The second ground is that, having heard the evidence as set out below, the Applicant has little likelihood of success on the merits of his case.
All documents were entered into evidence as Exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in subsection 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. In a typewritten letter, dated March 26, 2012, the Applicant pleads for the return of the vehicle on the ground that the loss of the vehicle may cause him to lose his job, as the vehicle is required not only for transportation to and from work, but also to carry out his job responsibilities.
The Applicant testified that he was unaware the driver was disqualified, and reiterated his comments in the Notice of Appeal regarding the need of the vehicle for work.
In cross-examination, the Applicant confirmed that the driver is his brother and was the suspended driver; and that since the impoundment he has been using a company truck to get to and from work and to visit the job sites. According to the Applicant, using the company truck is inconvenient because he is not listed on the insurance and also because if the truck is out on the road, he has to wait for its return to go home.
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 regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content in Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 1, 2012.
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 subsection 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 just asked for the “help” of the Tribunal in returning his vehicle.
In closing, the Registrar’s Agent pointed out that the Applicant has alternate means of transportation to get to and from work as well as to carry out his duties.
The onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in subsection 50.2(3)(d) of the Act.
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, 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 alternate modes of transportation are available to the Applicant, as the Applicant is able to use the company truck.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses.
As such, the Tribunal finds that the criteria of section 10(1) of O. Reg. 631/98 are not met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 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., Member
RELEASED: April 24, 2012