Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7799/MVIA
CASE NAME: 7799 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: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Applicant: Dennis Mulvenna, Agent
For the Respondent: Russell McKnight, Counsel
Heard by teleconference: January 8, 2013
REASONS FOR DECISION
A hearing was held on January 8, 2013, 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: 2011, Mercedes-Benz C6G (the “vehicle”)
Date of Appeal: December 5, 2012
There were no preliminary matters in dispute between the parties.
The hearing proceeded.
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 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 agent confirmed that the Applicant was the owner of the vehicle. The Applicant is in the business of building service and property maintenance, so that the vehicle was used in carrying on the Applicant’s business.
The Applicant’s agent also confirmed that, on the date on which the vehicle was impounded, J.R. was driving the vehicle and that he was an employee of the Applicant. The Applicant did not know that J.R.’s licence had been suspended at the time he was driving the vehicle. The Applicant’s agent stated that he believed that the J.R.’s licence suspension was for a period of only seven or ten days and that his licence had been reinstated by the time J.R. was stopped by the police on November 25, 2012, when the vehicle was impounded.
The Applicant wanted to have the vehicle returned so that the Applicant could continue to use the vehicle in its business.
On the issue of “exceptional hardship,” the Applicant’s agent stated that the hardship resulted from the Applicant not being able to use the vehicle in carrying on its business because of the impoundment. The impoundment was scheduled to expire on January 9, 2013, which was the day after this hearing was held. In the meantime, without the use of the impounded vehicle, the other employees either had to use their own vehicles in carrying on their work to or had to “double up,” to quote the agent’s testimony, when they used the corporate Applicant’s other vehicles. The agent, to his credit, candidly acknowledged that he was not certain that the hardship in not having the vehicle during the impound period was “exceptional,” but considered the matter to be a “learning experience” for him. In addition, he acknowledged that the Applicant had four other vehicles that it owned and two others that it leased in order to carry on its business.
At the conclusion of his testimony, the agent confirmed that he had been permitted to inform the Tribunal of everything that he [the applicant] wanted the Tribunal to know of this matter.
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 plate owner of the vehicle. The vehicle portion of the certificate of registration was in the name of a different company, from which the Applicant leased the vehicle.
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 driving with more than 80 mgs. of alcohol in 100 millilitres of blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 6, 2013.
The Registrar relied on its Materials and Submissions, filed as Exhibit #2, and 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 section 50.2(3)(d).
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
The very candid and frank evidence on behalf of the Applicant was that alternatives existed for the impounded vehicle. The Applicant’s employees either used their own vehicles in conducting their work or doubled up in the Applicant’s other vehicles. Because alternatives were available, the Tribunal does not have to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the impounded vehicle (section 10(1)(a) of Regulation 631/98). Nor does the Tribunal have to consider whether the impoundment will result in a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily located (section 10(1)(b) of Regulation 631/98).
Furthermore, because alternatives were available, the Tribunal does not have to consider the factors set out in section 10(2) and 10(3) of the Regulation. The Tribunal is satisfied that the Applicant used all reasonable options available to it during the impound period.
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
Kenneth W. Koprowski Vice Chair
RELEASED: January 10, 2013