7722 v. Registrar of Motor Vehicles, 2012 CanLII 77014

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-12-04

FILE: 7722/MVIA

CASE NAME: 7722 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.

7722 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: SONIA DE SANTIS, Agent

Heard by teleconference November 27, 2012

REASONS FOR DECISION

A hearing was held on November 27, 2012 by teleconference 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: 2012 FORD FSE (the “vehicle”)

Date of Appeal: November 7, 2012

All documents were entered into evidence as exhibits with the consent of both parties.

As the Applicant did not object the Tribunal allowed an Interview Report prepared by PC Trapp, and signed by the Applicant to be introduced as post hearing evidence.

The Registrar’s agent submitted, subsequent to the hearing a copy of an interview report. As the officer was not present during the course of the hearing, and therefore could not be cross examined, the Tribunal did not give any consideration to the document in arriving at its decision.

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, and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3) (b) 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 #1. The Applicant pleads for the return of the vehicle on the ground that loss of the vehicle will cause exceptional hardship to herself and to her two children. The Applicant explains that she lives “far away from everything”; the vehicle is needed to allow the family to get around.

The Applicant contends that she does not have the funds to cover the cost of the impoundment.

Further the Applicant maintains that her driver’s licence is valid and that she was driving the vehicle, when the officer stopped her.

The Applicant reiterated her comments on the Notice of Appeal, by attesting that she is a single mother, and that life has been hard since the impoundment, as she has had to borrow “other people’s” cars to get to and from doctor’s appointments.

According to the Applicant, she has been forced to miss medical appointments for her and her children.

In cross-examination, the Applicant testified that she was driving at all times and disagrees with the information provided by the Ontario Provincial Police to the Registrar, which indicates a suspended driver was driving the vehicle. The Applicant contends that she did have a friend with her who sat in the back seat because it had been a long day and he was tired.

The Applicant stated that due to an existing anxiety condition, she felt overwhelmed by the incident and did not know how to deal with the police. She does recall providing the officer with the documents requested, such as her own driver’s licence and vehicle ownership.

The Applicant confirmed that her children have been walking to school, and emphasized that that she is not able to afford either taxis or a rental vehicle.

The Applicant is currently on an Ontario Works Program and needs to attend various medical appointments in order to be transferred to the Ontario Disability Benefits Program.

With respect to medical appointments, the Applicant confirmed that she has missed mental health appointments, which have been re-scheduled, and that her children have missed a dentist appointment.

The Applicant testified that there are 911 services in the area.

The Applicant called the suspended driver as a witness. The Applicant’s witness testified that he did not know what the Applicant expected him to say. He testified that:

• he has been trying to obtain help for the Applicant

• the Applicant was not aware of his disqualification

• he was not driving

• he was sitting in the back seat because he was sleepy

In cross-examination, the witness testified that he was charged with driving while disqualified and with drunk driving.

The witness maintains that the information provided to the Registrar is incorrect, as he was not driving.

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 July 28, 2017.

On November 23rd, 2012, the Tribunal received a copy of a typed memorandum from PC Oderkirk addressed to the Registrar’s Agent, Ms DeSantis. The memorandum detailed the incident that led to the Applicant’s vehicle being impounded, and states that the police officer saw the Applicant and the actual driver of the vehicle changing seats.

The Registrar called the police officer involved in the incident as a witness.

Police Constable Oderkirk has been a police officer since 2003. The Officer described the events that led to the Applicant’s vehicle being stopped. The Officer testified that noticing that the vehicle was taking too long to pull over, he activated his spotlight and observed a male jump on to the back seat of the vehicle he was pursuing and “smaller individual” jump on to the driver’s seat

The Officer testified that he was in possession of a caution statement prepared by Officer Trapp, who attended at the scene confirming the Applicant’s admission that the suspended driver was driving.

The Applicant chose not to cross-examine the Officer.

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).

Issue 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 made was not then under suspension?

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.

Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

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 reiterated her disagreement with the evidence provided.

In his closing the Registrar’s Agent pointed out the vehicle was impounded correctly. Officer Orderkirk, testified that he has no doubt that the disqualified driver was driving the Applicant’s vehicle. The Registrar’s Agent pointed out that the Applicant had an opportunity to object and question Officer Orderkirk’s statement that she signed a statement acknowledging that the disqualified driver was driving, but failed to do so.

With respect to exceptional hardship, as defined by the Regulation, it was not established. According to the Registrar’s Agent, there are alternate modes of transportation available to the Applicant,

In summary the Registrar’s Agent concluded that there are no health and safety issues as 911 service is available in her area, and there is no evidence of threats to health and safety.

With respect to financial loss, the Registrar’s Agent maintains that there has been no loss of income.

The Tribunal will first address the Applicant’s appeal under section 50.2(3)(b) of the Act “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”.

The Tribunal must choose between two contradicting sets of testimony. The Applicant maintains that she was driving at all times and that the disqualified driver never had care and control of her vehicle. Constable Orderkirk attested that he witnessed two individuals changing seats.

The Tribunal accepts the Officer’s testimony and therefore concludes that the driver of the vehicle was in fact disqualified.

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. Albeit inconvenient, friends have been able to assist 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.

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 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: December 4, 2012