G-Force Customs Inc. v. Registrar of Motor Vehicles, 2012 CanLII 46008

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-08-10

FILE: 7520/MVIA

CASE NAME: 7520 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.

G-Force Customs Inc. Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: ANTOINE AOUAD, M.D., Member

APPEARANCES:

For the Applicants: Represented by owner

For the Respondent: SONIA DE SANTIS, Agent

Heard in Toronto by teleconference: July 31, 2012

REASONS FOR DECISION

A teleconference hearing was held on July 31, 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 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: 2001 LEXS GS3 (the “vehicle”)

Date of Appeal: July 12, 2012

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 #1), the owner appeals on the basis that the driver's licence was not under suspension, that the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3) (b) (c) and (d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the driver’s licence of the driver of the motor vehicle at the time in respect of which the vehicle was detained in order to be impounded was not then under suspension?

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 owner of the impounded vehicle is a corporation. An unsigned, undated typewritten note, entitled “Grounds for Appeal” explains the licence of the individual driving the vehicle at the time of impoundment was not suspended and that the loss of the vehicle “is causing the company great hardship”.

Several documents are attached to the Notice of Appeal:

• Driver’s Licence history of the person driving the vehicle at time of impoundment
• Criminal Record Check from the Durham Regional Police Service
• Summons to Appear
• Record of Court Appearance.

During the hearing, the Applicant’s Agent reiterated the comments in the Notice of Appeal, testifying he was the person driving the vehicle at the time of the impoundment and he had no knowledge that his licence was suspended, as he had been out of the Province. The Applicant ‘s Agent claims that he explained to the Officer that a similar mistake has been made in the past, but that each time the Courts have acquitted him. Yet, according to the Applicant’s Agent the wrong information appears to have been sent to the Ministry. The Applicant’s Agent is adamant that no notification was ever received regarding the licence suspension.

The Applicant’s Agent acknowledged that in 2003 he could have been charged with driving while under suspension, but instead he was charged with driving disqualified.

According to the Applicant’s Agent the loss of the vehicle is causing business hardship.

In cross-examination, the Applicant’s Agent confirmed: that he is the sole owner of the company which does renovations; the impounded vehicle is used to transport employees; there are no current job in progress.

The Applicant’s Agent testified that he does not understand why the records show that he has been driving while disqualified because he was never disqualified. The Applicant affirmed that he could not have been stopped on the dates stated in the Driver Record as he was in custody from 2001 to 2003, in custody in 2004, 2005 then in 2008.

The Applicant’s Agent attested that the dates shown on the driving records are correct. The Applicant’s Agent suggested that he might have been driving while under suspension in 2003 but he disputed ever being a disqualified driver. According to the Applicant’s Agent it was this mistake that led to the subsequent charges and to the problems of today. The Applicant’s Agent is adamant that he was unaware he was under suspension as he was acquitted by the Courts.

Asked by the Tribunal if he had a driver’s licence in his possession when he was stopped on June 29^th, 2012, the Applicant’ Agent replied that he did not because he has been out of the Province of Ontario for a while. According to the Applicant’ Agent he was unable to obtain a licence from another province due to the problems with the Ministry in Ontario.

With respect to exceptional hardship, the Applicant’s Agent attested that at the time of the impoundment he had to pay for cabs and other modes of transportation for his employees to finish the two contracts the company held at the time. Since the impoundment the company had not obtained any new contracts.

According to the Applicant since the company does not have any credit cards it would be impossible to rent a vehicle.

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 of Motor Vehicles 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 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until 7 June 2013.

The Registrar called no other evidence.

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 sections 50.2(3) (b) and (d)

Section 41 of the Act identifies the type of appeals for which a licence is suspended in sections 41(1)(a), (b), (c), (d), and (e) and 41(7) and 42(1) and 42(5) as follows:

41.(1) Subject to subsections 41.1 (1), (2) and (3), the driver’s licence of a person who is convicted of an offence,

(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;

(b) under section 249, 249.1, 249.2, 249.3, 249.4 or 252 of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle;

(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(c) under section 254 of the Criminal Code (Canada) committed in relation to,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40; or

(e) referred to in a predecessor to this sub-section,

is thereupon suspended ....

42.(1) The driver’s licence of a person who is convicted of an offence under subsection 259 (4) of the Criminal Code (Canada) or under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40 is thereupon suspended for a period of,

(a) upon the first conviction, one year; and

(b) upon a subsequent conviction, two years,

in addition to any other period for which the licence is suspended and consecutively there to.

(4) This section applies in the same manner as if a person were convicted of an offence if the person pleads guilty to or is found guilty of an offence referred to in subsection (1) and,

(a) an order directing that the accused be discharged is made under section 730 of the Criminal Code (Canada) or under a provision that is enacted by a state of the United States of America and that is designated by the regulations; or

(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders Act (Canada) or a youth sentence is imposed under section 42, 59, 94, 95 or 96 of the Youth Criminal Justice Act (Canada) or an adult sentence is imposed under the Youth Criminal Justice Act (Canada), including a confirmation or variation of the disposition or sentence.

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‘s Agent repeated previous statements that he did not believe that his licence was suspended. The Loss of the vehicle is causing great hardship as it is difficult for a company to run without a vehicle. The Applicant’s Agent feels that the company should not be penalized for a Ministry’s mistake. Further according to the Applicant’s Agent the company has no money to pay for the impoundment costs.

In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly.

The Registrar’s Agent noted that the Ministry Records show that the Applicant’s Agent’s driver’s licence is in fact suspended. According to the Registrar’s Agent the Applicant’s Agent had not shown that his licence was not under suspension.

As for exceptional hardship, the Registrar’s Agent pointed out that the Applicant did have contracts which were concluded and paid for, and that the employees were also paid. Thus there appears to be losses that any losses would be long lasting and significant.

The onus is on the Applicant to establish the driver’s licence was not suspended at the time of impoundment, and exceptional hardship, as grounds of appeal, as provided in sections 50.2(3)(b) (d) of the Act, respectively.

The Tribunal will first address the matter of the driver’s licence. Section 50.2(3)(b) of the Highway Traffic Act which allows an appeal on the grounds that:

(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;

In order for an appeal to succeed on the grounds that the driver’s licence was not suspended at the time of the impoundment, the Applicant must show proof that the driver of the vehicle in fact had a valid driver’s licence, not the driver was unaware of the suspension.

The Tribunal can appreciate the Applicant’s Agent’s contention that the Ministry has made several mistakes with respect to his record. What the Tribunal finds quite troublesome is that the Applicant’s Agent while driving the company vehicle did not have a driver’s licence in his possession. The Registrar has presented the Tribunal with documented evidence of the suspension. The Applicant’s Agent’s did not successfully prove to the Tribunal that, as the driver of the company vehicle, he did in fact have a valid driver’s licence.

Thus the criteria for appeal under Section 50.2(3)(b) of the Highway Traffic Act were not met.

With respect to exceptional hardship, 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.

There are alternate vehicles available to the Applicant, albeit inconvenient and expensive.

The Tribunal still considered the Applicant’s Agent argument that the loss of the vehicle is causing great hardship. The Tribunal must concur with the Registrar’s Agent there is no documented proof that any losses which may have been incurred are immediate significant and long lasting.

Therefore, 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: August 10, 2012