7334 v. Registrar of Motor Vehicles, 2012 CanLII 24520

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-05-04

FILE: 7334/MVIA

CASE NAME: 7334 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

Applicant Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Antoine Aouad, M.D., Member

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Frances Ilari, Agent

Heard in Toronto: April 25, 2012

REASONS FOR DECISION

A hearing was held on April 25, 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: 2003 Ford COF (the “vehicle”)

Date of Appeal: April 5, 2012

The matter came before this Tribunal on April 25, 2012, and proceeded as an oral hearing.

At the commencement of the hearing, the Applicant sought to introduce a letter from the suspended driver to show that the vehicle was not “given” to him. There being no objection from the Registrar’s Agent, the document was entered as Exhibit #4.

The Registrar’s Agent and the Tribunal questioned the Applicant as to whether he wished to change his grounds for appeal. The Applicant replied in the negative.

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 April 3, 2012, the Applicant pleads for the return of the vehicle on the ground that the vehicle is needed “to work”. The Applicant acknowledges that he had a lapse in judgment but feels that he has been punished enough.

A letter from the disqualified driver dated April 24, 2012, states that he drove the truck without the knowledge and consent of the Applicant.

The Applicant testified that he was aware of the disqualified driver’s suspension. He agreed to allow his car to be borrowed on the condition that the disqualified driver’s brother would be driving.

According to the Applicant, he has made no money since the impoundment and he is so far behind on his mortgage that he has had to put his house for sale. He has other bills to pay. He is embarrassed and feels humiliated about the financial repercussions of the incident.

In cross-examination, the Applicant attested that he is a self-employed repairperson. Since the impoundment, he has only been able to pick up small jobs as a sub-contractor. The vehicle he currently drives cannot be used to carry tools.

The Applicant affirmed that he is attempting to consolidate his debts and is finding it hard. He confirmed that he lives from pay cheque to pay cheque; the couple of hundred dollars he has earned has been basically lunch money.

The Applicant asserted that he lost a job that would have brought in an income of approximately six thousand dollars due to the loss of the vehicle. The Registrar’s Agent suggested the possibility of renting a truck, to which the Applicant replied that even if he could have afforded renting a truck, his credit card would not have gone through.

The Applicant has been in touch with the disqualified driver who confirmed he would cover expenses; nonetheless the Applicant believes that at this point, it is just an offer.

There are three other vehicles registered to the Applicant, yet he explained that he no longer owns two of those vehicles, and has not owned those vehicles for years.

As far as health and safety, the Applicant admitted that there are 911 services in his area.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified or Prohibited under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 15, 2014.

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:

1. 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.

2. 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.

3. 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, 3^rd 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 confirmed that he understands he made a mistake. According to the Applicant, he was not aware the suspended driver “was a chronic disqualified driver”.

In closing, the Registrar’s Agent pointed out that 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 modes of transportation available to the Applicant. The Applicant is using his 1997 Buick to carry on his business.

With respect to financial loss, the Registrar’s Agent maintains that the loss incurred due to the loss of the job could have been mitigated by the rental of another truck. Further, the Applicant’s financial difficulties are being handled; there is no proof that the losses are significant and long lasting.

According to the Registrar’s Agent, the law does provide for the recovery of the impoundment fee from the suspended driver, and it appears that the suspended driver has assumed responsibility.

In summary, the Registrar’s Agent concluded that there are no health and safety issues as 911 services are available in the Applicant’s area.

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:

10. (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. Albeit inconvenient, the Applicant has been able to drive his other vehicle to maintain some small jobs.

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 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., Member

RELEASED: May 4, 2012