Licence Appeal Tribunal
FILE: 8267/MVIA
CASE NAME: 8267 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: 8267
-and-
Respondent: Registrar of Motor Vehicles
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: August 20, 2013
REASONS FOR DECISION
A hearing was held on August 20, 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 August 21, 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: 2000 CHEV SIL (the “vehicle”)
Date of Appeal: August 7, 2013
By way of preliminary matters, the Applicant reiterated her comments on the Notice of Appeal that the original Notice of Impoundment completed by the Officer at the scene, contained several mistakes. The Applicant indicated that all mistakes had been corrected in the document she received from the Ministry.
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 wrote that the loss of the vehicle will cause exceptional hardship, as she is three months pregnant and needs the vehicle to get to the various appointments. Further, the Applicant states that she is in the process of looking for a job and having a vehicle would make the process easier.
The Applicant notes that her name is spelt wrong and that the Notice of Impoundment did not have a number.
During the hearing, the Applicant testified that when the vehicle was impounded it had actually been taken without consent. The Applicant explained that no charges were laid because she is in a relationship with the suspended driver, and is having his baby.
According to the Applicant she does have another car which is not drivable, and therefore insured because of an incident of fire.
The Applicant attested that her finances are meagre given the fact that she is currently not working. With respect to the impoundment fees, the Applicant affirmed that she attempted to have the vehicle transferred to another location, which charges a lower per diem fee than where the vehicle is right now. According to the Applicant the vehicle is hardly worth the cost of to have it released.
Being pregnant the Applicant is required to attend her physician on a regular basis, and since she lives out in the country there is no public transportation available. The Applicant stated that the stress caused by the incident and the situation is affecting her.
The Applicant advised the Tribunal of a possible conflict of interests between the Officer who impounded the vehicle and the towing company which is owned by his wife.
In cross-examination, the Applicant described the events that led to the impoundment. The Applicant explained that normally she would drive and pick up her boyfriend to and from work. On the day of the impoundment, he did not wake her up and decided to take the vehicle himself.
The Applicant is aware of the suspension, and affirmed that she has told her boyfriend he is not to drive the vehicle.
With respect to medical appointments, the Applicant had to reschedule one but managed to have it done the same day, with the help of her cousin. In the future the appointments will become more regular, and since her cousin works during the day it is difficult for her to help the Applicant.
The Applicant’s mother has also helped by buying groceries once; according to the Applicant her mother is able to help, but not willing. The Applicant stated that she will have to get the blood work done again, and feels that it will be difficult to get someone to drive.
According to the Applicant the suspended driver is not in a position to help with the cost of the impoundment, and she is concerned that if she is not able to pay, the owner of the lot will take over the ownership.
There is 911 service available but it might take some time to a response. The Applicant confirmed that she has been very stressed due to the impoundment
Evidence for the Registrar
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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for Life.
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, although she has received assistance up to now, there is no guaranty that they will continue to help, plus she feels she might end up losing the vehicle if she cannot pay the impoundment fees, which will prolong her hardship.
In response to the Tribunal’s question of how often her boyfriend had driven the car in the past, the Applicant replied that he had taken the car from her work on one occasion, but she reported him and had him arrested.
In her summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
Speaking first on exceptional hardship, the Registrar’s Agent pointed out that the Applicant has received help from both her mother and her cousin. According to the Registrar’s Agent, nothing in the Applicant’s testimony indicates that that there is hardship, as she has kept her appointments and there is 911 available in the area. With respect to financial loss, the Registrar’s Agent pointed out that since the Applicant is not working, there is no loss.
The Registrar’s Agent maintained that the car does not appear to have been stolen as the Applicant admitted he had driven it before.
Prior to setting out the reasons for decision the Tribunal feels it is imperative to advise the Applicant that the Tribunal has no jurisdiction to deal will address the issue of mistakes in the original notice of impoundment prepared by the officer, or allegation of conflict of interests.
In her Notice of Appeal, the Applicant stresses the exceptional hardship ground for appeal. Nonetheless, the Tribunal is compelled to look at the totality of the evidence and consider whether the vehicle was stolen, as per section 50.2(3)(a) of the Act. According to the Applicant the vehicle was taken without her knowledge while she slept.
The Applicant testified that her boyfriend knew he was not to drive the vehicle, and that she was asleep when he took the car without her knowledge. 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 is satisfied that the Applicant was being truthful in her testimony and accepts the evidence proffered by the Applicant. The Tribunal also accepts the Applicant’s argument that due to the existing relationship, the Applicant felt unable to lay charges against her boyfriend. The laying of charges against the driver is not a pre-condition to the Tribunal finding that the car was stolen within the meaning of the Act.
As such, the Tribunal finds that the vehicle was “stolen” and therefore the criteria of section 50.2(3)(a) of the Act has been met, and the appeal succeeds on that ground.
Albeit not required, in recognition of the fact that the Applicant is three months pregnant and testified that she has been considerably stressed by the events, the Tribunal may also consider the matter of health and safety. Section 22 (1) of the Ontario Regulation 632/98 Amending Regulation 574 of R.R.O. 1990 prescribes that:
“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 impoundment motor vehicle is available and, if no alternative is available, whether the impoundment will result in,
(a) threat to the health or safety of any person ordinarily transported by the motor vehicle; or,
(b) threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.”
Given the well-known and proven potential negative consequences of stress, as well as the fact that the Applicant lives in an isolated area, the Tribunal finds that she meets the criteria of Section 22 (1) of the Ontario Regulation 632/98. Amending Regulation 574 of R.R.O. 1990.
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 23, 2013