Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-08-01
FILE:
8191/MVIA
CASE NAME:
8191 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:
Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Victoria Sim, Agent
Heard by teleconference:
July 23, 2013
REASONS FOR DECISION
A hearing was held on July 23, 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 “Act”).
Pursuant to section 50.2 (5) of the Act, by Order dated July 24, 2013, THE TRIBUNAL ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE. These are the reasons for that Order.
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: 1997 MITS SGT (the “vehicle”)
Date of Appeal: July 3, 2013
As a preliminary matter, the Tribunal requested the Applicant to confirm, for the record, her desire to proceed, given that she only received the Registrar’s disclosure records today before the hearing.
The Applicant introduced a copy of a Landlord and Tenant Board Application to evict a tenant for non payment of rent”. As no objection was raised by the Registrar’s Agent, the document was entered as Exhibit # 4.
All documents were entered into evidence as exhibits with the consent of both parties.
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 her son drove the vehicle without her knowledge, in order to meet a prospective buyer. According to the Applicant the family is behind on the rent.
The copy of the Landlord and Tenant Board Application to evict a tenant for non payment of rent” shows an amount in arrears of $5,970.00 as of 31/07/2013.
At the hearing the Applicant testified that her son has been laid off and the proceeds from the sale of the car are needed to cover the rent. The Applicant confirmed that they now have someone willing to buy the car as long as the car is not in impoundment.
In cross-examination, the Applicant explained that when the car was impounded, she had just purchased the vehicle and had not as yet transferred it to her name. According to the Registrar’s Agent the vehicle was transferred to the Applicant‘s name subsequent to the impoundment and the plates for the vehicle expire in September. The Applicant does not remember registering the vehicle in her name, nor was she aware if she purchased new plates if an old plate from another vehicle was used.
Although the rent arrears preceded the impoundment, the Applicant confirmed that the plan was to make money by selling the car at a higher price than the purchase cost. According to the Applicant the intended buyer is willing to pay $2,000.00 over the purchase price but will only wait until the 27th of July.
The Applicant testified that she is on ODSB disability benefits and does works part-time; nonetheless, she has not missed time off work. As for her son, he was laid off, but has had some “little jobs” and now has found a job. In the meantime the Applicant has been getting around with the help of her sister or public transit.
The Applicant attested that there are no particular health issues.
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 four 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 Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 16, 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:
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.
APPLICATION OF LAW TO FACTS
In closing, the Applicant stated that the situation has been very stressful, emphasizing that her son should have suggested that the buyer come to him rather than him driving to the buyer. Further, unless the extra money from the sale is obtained, the rent will not be paid, as they also have tried to save money to pay the impoundment fees.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
The Registrar’s Agent pointed out that the criteria in section 50.2(3)(d) of the Act is very specific and the criteria is not met as the Applicant has alternative transportation available, both by being able to use public transit and through the assistance of her sister.
The Registrar’s Agent maintains that there has been no significant and lasting loss of income, as the Applicant’s Agent has been able to get to her part-time job and is on ODSB disability benefits.
In rebuttal, the Applicant clarified that the vehicle was taken without her knowledge but could not be considered to have been stolen.
As the Applicant admitted that the vehicle has not been stolen, the Tribunal proceeded with the consideration of exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.
The onus is on the Applicant to meet the criteria of Section 10 of Regulation 631/98 which provides that:
- (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…
On the surface it would appear that the Applicant does have alternate transportation, nonetheless given the Applicant’s financial situation incurring the extra expense would increase the current burden faced by the Applicant. Further, the Tribunal heard evidence that the Applicant has a prospective buyer who will purchase the vehicle on condition the vehicle is released prior to July 27th, thus should the vehicle be made available to the Applicant, losses may be mitigated.
The Tribunal heard evidence that the Applicant has a prospective buyer who will purchase the vehicle on condition the vehicle is released prior to July 27th.
The Applicant appeared to be sincere and forthright in her testimony, and the Registrar’s Agent’s cross-examination did not lead to any doubts about the Applicant’s credibility. The Tribunal accepts the fact that the Applicant is on the verge of being evicted, which definitely qualifies as exceptional hardship likely to have a lasting effect.
The Tribunal therefore finds that the loss will create exceptional hardship for the Applicant’s business.
The Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Member
Released: August 01, 2013