Licence Appeal Tribunal
FILE: 8045/MVIA
CASE NAME: 8045 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.
8045 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: JAY SHANMORGAN, Agent
Heard by teleconference: May 14, 2013
REASONS FOR DECISION
A hearing was held on May 14, 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”).
Pursuant to section 50.2 (5) the Tribunal CONFIRMS THE IMPOUNDMENT. 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: 2004 DODG RPC (the “vehicle”)
Date of Appeal: April 24, 2013
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 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 written submission filed with the Tribunal in support of the appeal was entered as Exhibit #1. In the Notice of Appeal, the Applicant pleads for the return of the vehicle on the ground that the loss of the vehicle will cause exceptional hardship, in that the vehicle is needed for the “job and to haul materials and equipment”.
During the hearing, the Applicant described the circumstances surrounding the impoundment. According to the Applicant the person, identified as” C”, found driving the vehicle was hired to do some repairs, not as a driver. It is C who is listed on the Notice of Impoundment as the driver at the time the vehicle was stopped by the police officer. The Applicant attested to the fact that he asked “A”, (subsequently determined by him to be a suspended driver) to drive his personal truck, after enquiring if he had a licence and obtaining an affirmative answer.
In cross-examination, the Applicant stated that he has now been informed by the Police that the information provided by the Ministry is incorrect, in that C, named by the Ministry as the driver of the vehicle at the time of the impoundment, was not the driver. Nonetheless, the Applicant admitted that he has also been informed that ‘A”, the person to whom he entrusted his vehicle, has multiple licences, none of which are valid.
In response to the Registrar’s Agent questions, the Applicant provided a list of the other vehicles he owns. However, both vehicles are for personal use and not for work purposes. According to the Applicant, he is now using a company owned vehicle in order to carry on his business.
The Applicant claimed that he was aware the person named by the Ministry was under suspension. As far as the actual driver of the vehicle, the Applicant asserted that he saw him drive to work in a BMW, and assumed he had a driver’s licence.
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 Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until for Life.
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
In closing, the Applicant stated that he learned his lesson and requested the Tribunal release the vehicle.
In closing, the Registrar’s Agent maintained that the vehicle was properly impounded in that the Ministry documents show that C, the person driving the vehicle, was suspended at the time.
Further, the Registrar’s Agent quoted Section 10 of the Regulation, contending that requirements are not met in that there are alternatives to the impounded vehicle. The Registrar’s Agent points out that the Applicant owns other vehicles, which he has been using.
According to the Registrar’s Agent, there has been no loss of income, which can be deemed to significant and long lasting as the Applicant is still working.
In the course of the hearing, the Applicant stated that C, the person listed in the Ministry documents, and who is a suspended driver under s. 41, 42 or 43 of the Act, was not in fact the driver. The Tribunal must decide, based on the best, and most plausible, evidence before it. The Notice of Impoundment completed by the police officer names C as the driver. The Applicant has offered no corroborating evidence for his assertion that A was the driver. Therefore the Tribunal finds that C was the driver and the vehicle was properly impounded pursuant to the provisions of the Act.
The Applicant appealed on the ground of exceptional hardship, as provided in section 50.2(3)(d) of the Act, thus the onus is on the Applicant to establish the grounds for appeal.
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:
- (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 alternative modes of transportation are available, as the Applicant has the two personal vehicles and at least one company vehicle at his disposal.
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.
The Tribunal’s decision regarding the appeal on the basis of a failure to meet the criteria of exceptional hardship would be no different if, as alleged by the Applicant, A was the driver, given that the Applicant candidly admitted that A, too, was a suspended driver.
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: May 24, 2013