7439 v. Registrar of Motor Vehicles, 2012 CanLII 35549

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-06-25

FILE:

7439/MVIA

CASE NAME:

7439 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:

Russell McKnight, Agent

Heard in Toronto:

June 21, 2012

REASONS FOR DECISION

A teleconference hearing was held on June 21, 2012, at Toronto, 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: 2002 LEXS S43 (the “vehicle”)

Date of Appeal: June 5, 2012

The matter came before this Tribunal on June 21, 2012, and proceeded as a teleconference (electronic) hearing.

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 #1), 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 #1. In a typewritten letter, dated May 30^th, 2012, the Applicant pleads for the return of the vehicle on the ground that loss of the vehicle will cause immense disruption to her family, as her three children need to get to different schools and taken to various extra curricular activities. The Applicant states that she is also a small business owner who needs to look after her business and her 7 staff members.

At the hearing, the Applicant reiterated her comments in the Notice of Appeal. She does own a work truck, which she used as a service vehicle. Since the impoundment, she has caused someone else to lose his job and she has had to use her service vehicle.

In cross-examination, the Registrar’s Agent questioned the Applicant about her relationship with the suspended driver.

The Applicant confirmed that originally she had friends drive her around in order to allow the staff to complete the current jobs. Once the jobs were finished, she has been using the service vehicle as the family vehicle.

With respect to renting a vehicle, the Applicant attested that she had not considered the possibility. Nonetheless, she commented that it would be difficult to rent a vehicle to transport paint. As far as the possibility of renting a vehicle for herself, the Applicant admitted that she did not think about the option. Her first thought was to take the service vehicle for her own use.

According to the Applicant she has not lost any contracts but has not been able to seek new jobs.

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 Impaired Driving 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:

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 requested to have her vehicle returned as soon as possible, in that the impoundment has been affecting her small business.

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.

The Registrar’s Agent pointed out that there is no threat to health or safety.

According to the Registrar’s Agent there are alternate modes of transportation available to the Applicant, which are also used as to keep the business in operation.

With respect to financial loss, the Registrar’s Agent maintains that the Applicant has not provided financial records to prove that there have losses which are immediate, significant and long lasting.

The Registrar’s Agent put forward the option of renting a vehicle, which the Applicant did not pursue, thus indicating that the Applicant is not mitigating her losses, as required by legislation.

The onus is on the Applicant 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:

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.

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.

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: June 25, 2012