Licence Appeal Tribunal
FILE: 8227/MVIA
CASE NAME: 8227 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.
8227 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: August 7, 2013
REASONS FOR DECISION
A hearing was held on August 7, 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: 2005 FORD SRV (the “vehicle”)
Date of Appeal: July 18, 2013
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (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. The Applicant is a corporation, in the Notice of Appeal, the Applicant’s Agent pleads for the return of the vehicle on the ground that without the impounded vehicle the Applicant will cause exceptional hardship as this is the busy time of the year in farming.
Mr. Wettlaufer, the principal of the Applicant, and Agent at the hearing, gave evidence. He reiterated the statement in the Notice of Appeal, emphasizing that he does not know the suspended driver, as the person to whom he gave care and control of the vehicle is a licenced individual. According to the Applicant’s Agent his employee’s roommate took the car without permission.
In cross-examination, he explained that the person, to whom he gave the car, expressed his intent to pay for the cost of the impoundment. According to Mr. Wettlaufer the business owns several other vehicles, nonetheless those vehicles are no substitute for the impounded vehicle due to the farming regulations.
In response to the Registrar’s Agent question as to whether the suspended driver wanted to deprive him of the use of the vehicle, the witness was adamant that he does not know this person and cannot attest to his intent.
The Applicant’s Agent confirmed that when he allowed his employee to drive the vehicle he never specifically told him not to allow anyone else to drive. Further, according to the Applicant’s Agent, the employee has accepted responsibility and has agreed to reimburse the Applicant for costs arising out of the impoundment.
With respect to hardship Mr. Wettlaufer had no documents to substantiate any financial loss.
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 April 18, 2014.
Decision 8201/MVIA v The Registrar of Motor Vehicles July 24, 2013
Decision 8198/MVIA v The Registrar of Motor Vehicles July 25, 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 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‘s Agent urged the Tribunal not to punish him for something totally out of his control and for dealing with in good faith. The Applicant‘s Agent stated that he is a responsible person and as far as the loss it is not usually just one thing but a combination and this incident is adding to the hardship.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly. Further the Registrar’s Agent suggests that there is no evidence the vehicle was stolen as the person’s intent was not to deprive the owner of the vehicle.
According to the Registrar’s Agent the Applicant could not have exercised due diligence as the vehicle was lent to an employee who subsequently lent it to the suspended driver.
With respect to exceptional hardship there is nothing to suggest the company is hurting, as there was no bank statement provided to indicate that there has been significant and lasting loss of income, as well the Applicant owns several other vehicles.
The Registrar’s Agent suggested that the company has been in business for over 30 years and that it has survived without the truck since the impoundment, it will survive the remaining period.
In rebuttal, the Applicant‘s Agent expressed his displeasure of the misinterpretation of facts by the Registrar’s Agent; first, the vehicle was not lent to the suspended driver; second the impoundment is not necessarily causing a financial hardship but rather a logistic hardship and the number of years the Applicant has been in business is totally irrelevant.
Given that the Applicant testified that the vehicle was taken without his knowledge or permission, the Tribunal considered whether the vehicle could have been deemed to have been stolen pursuant to section 50.2(3)(a).
After reviewing the witness’s testimony the Tribunal finds that the vehicle was not stolen. The Applicant’s Agent surrendered care and control of the vehicle to his employee without any specific directive as to who would be allowed to drive. Further, there is no indication that the person to whom the car was lent, did not himself give the car to the suspended driver. The Tribunal notes that the Applicant’s Agent opted not to call his employee, who could have shed some light on whether or not the vehicle was stolen, as a witness. By acquiescing to pay the impoundment fees the person to whom the car was given acknowledges responsibility, which corroborates the premise that the vehicle was not stolen.
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:
- (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. The evidence is conclusive that the Applicant owns several farm vehicles.
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: August 14, 2013