7835 v. Registrar of Motor Vehicles, 2013 CanLII 3242

Licence Appeal Tribunal

DATE: 2013-01-24

FILE: 7835/MVIA

CASE NAME: 7835 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.

7835 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: January 15, 2013

REASONS FOR DECISION

A hearing was held on January 15, 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: 2000 TOYT SIE (the “vehicle”)

Date of Appeal: December 31, 2012

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

As a preliminary matter, the interpreter who participated in the hearing to assist the Applicant was affirmed.

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 grounds that: the person whom she allowed to driver her vehicle had a valid driver’s licence and the loss of the vehicle will cause exceptional hardship as she needs the vehicle to carry out her daily activities.

During the hearing the Applicant reiterated the comments on the notice of appeal with respect to hardship, emphasizing that it is difficult to go to the supermarket to get groceries without the vehicle.

In cross-examination, the Applicant testified that the person who should have been driving the vehicle was licensed. According to the Applicant, the person found behind the wheel was not intended by her to be driving the car, and she was not aware that he was driving.

The Applicant attested that she was laid off two months ago, and that she has been using the bus or taxis to buy groceries. The Applicant admitted to owning another vehicle, nonetheless claims it is too old to be drivable.

The Applicant testified that she asked her friend to bring her to Toronto for a scheduled medical appointment.

The witness called by the Applicant, and the person to whom she had given her vehicle to, testified that he was going fishing with the suspended driver and stopped at a coffee shop. He left the car on the street. When a parking spot became available, the suspended driver drove the vehicle simply to park it in a proper spot, rather than leaving it on the street.

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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 11, 2014.

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:

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 insisted she needs her vehicle returned in order to take her son to the doctor.

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.

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, there are alternate modes of transportation available to the Applicant. The Registrar’s Agent argues that Applicant owns another vehicle, which, she claims she is not drivable, yet is still plated. Further, the Registrar’s Agent points out that the Applicant has public transportation in her area, which she has been able to use. As well, the Registrar’s Agent noted that the Applicant has been driven either by taxis or her friends.

In summary, the Registrar’s Agent concluded no medical appointments have been missed, and that although the Applicant has not used it, there are 911 services available in her area.

With respect to financial loss, the Registrar’s Agent maintains that there has been no loss of income, as the Applicant is not currently working.

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 evidence is that the Applicant herself was not present at the time the vehicle was impounded, and that according to the Applicant she entrusted the vehicle to a licensed driver. Nonetheless, the evidence clearly indicates that the person in the driver’s seat at the time was not licensed. This fact is corroborated both by the Applicant in her Notice of Appeal and the Applicant’s witness at the hearing.

Given the evidence, the Tribunal has no alternative but to find that license 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, as follows:

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;…

Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.

Albeit inconvenient, there are alternate modes of transportation available to the Applicant. The Applicant has another vehicle though she does not drive it and in any event has availed herself of public transportation as well as taxis, and has had friends assisting her in meeting her needs.

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.

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: January 24, 2013