Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-03-04
FILE:
7893/MVIA
CASE NAME:
7839 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.
Integrity Car and Truck Rentals
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
ANTOINE AOUAD, M.D. Member
APPEARANCES:
For the Applicant:
TARANDEEP RANDHAWA, Agent
For the Respondent:
RUSSELL MCKNIGHT, Agent
Heard in Toronto:
February 27, 2013
REASONS FOR DECISION
A hearing was held on February 27, 2013, 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 TOYT CBS (the “vehicle”)
Date of Appeal: February 7, 2013
As a preliminary matter, the Registrar’s Agent advised the Tribunal that submissions had not been forwarded to the Applicant nor to the Tribunal as the Registrar received notice that the hearing was only a motion regarding late filing of the appeal..
Since the Registrar’s Agent did not object to the late filing of the appeal, and the Applicant’s Agent did not wish an adjournment to review the submissions provided by the Registrar, the matter proceeded.
After reviewing the documentation, the Applicant’s Agent requested the Notice of hearing be amended to include exceptional hardship.
Without objection from the Registrar’s Agent, a copy of the rental agreement was entered into evidence.
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, 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 the Applicant was provided with stolen credit card information and therefore the Applicant cannot process payment with respect to the vehicle..
During the hearing, the Applicant’s Agent reiterated the reasons set out on the Notice of Appeal, emphasizing that the police confirmed the credit card was stolen, and as such the Applicant cannot hold anyone responsible for the loss.
In cross-examination, the Applicant testified that he assumes the credit card had not been charged, as the renter must have paid cash when exchanging the car in December.
According to the Applicant’s Agent, the Company has approximately 24 cars in the lot.
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 of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail To Provide Breath or Blood Sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 23, 2013.
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 sections 50.2(3)(a) (b) (c) 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‘s Agent requested leniency in that the Applicant was not aware the credit card was stolen and is now unable to process payment for the vehicle..
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly.
Regarding the issue of the licence not being under suspension, according to the Registrar’s Agent, the person having care and control of the vehicle when approached by the officer was in fact suspended as admitted by the Applicant’s witness. There was no evidence introduced at the hearing to refute the licence suspension.
With respect to exceptional hardship, as defined by the Regulation, the Registrar’s Agent contends the criterion was not met. According to the Registrar’s Agent, business has continued as usual, there is no evidence that any losses will be immediate, significant and long lasting. Further, since legislation provides for the recovery of impoundment costs, the Tribunal has no jurisdiction to issue an order for impoundment fees.
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”.
Given that no evidence in support of this ground of appeal was presented by the Applicant ,and based on the exhibits filed by the Registrar, the Tribunal finds that licence of the person sitting behind the wheel when approached by the Officer was indeed suspended. Thus, the ground for appeal under 50.2(3)(b) of the Act must fail.
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.
Only if no alternative mode of transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. The issue of alternate transportation was not argued as the Applicant is a rental company, which owns other vehicles.
The Applicant’s Agent maintained that the company would incur considerable loss as a result of the impoundment, nonetheless Section 27 of the Act precludes the Tribunal from awarding costs with respect to impoundment fees.
As no other documented losses were introduced in evidence, 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: March 4, 2013