8298 v. Registrar of Motor Vehicles, 2013 CanLII 62602

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-09-18

8298/MVIA

8298 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

-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:

Russell McKnight, Agent

Heard by teleconference:

September 10, 2013

REASONS FOR DECISION

A hearing was held on September 10, 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), 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: 2001 NISS XGX (the “vehicle”)

Date of Appeal: August 21, 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 #2), 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 #2. The Applicant pleads for the return of the vehicle on the ground that the vehicle was taken without her knowledge and consent. According to the Applicant, she attempted to lay charges against the suspended driver but was told by the police and the Justice of the Peace that it would be difficult to prove theft, as the person driving was her daughter’s boyfriend. The Applicant further contends that she is still paying for the vehicle and that the loss will result in exceptional hardship, as she does “not have any extra money for the accumulating impound fees”.

At the hearing, the Applicant reiterated the statement in the Notice of Appeal, emphasizing that she had no idea her car was impounded, as the person to whom she gave care and control of the vehicle is a licensed individual. According to the Applicant, she bought the car and insured it for her daughter.

The Applicant testified that when she attempted to lay theft charges against the suspended driver, she was informed that since the person driving was her daughter’s boyfriend there was no proof that the daughter had not given permission for him to drive the vehicle.

In cross-examination, the Applicant acknowledged owning another vehicle, and that the impounded vehicle was purchased for her daughter and was to be paid for by her.

The Applicant admits that although she advised her daughter no one else was to drive the vehicle, she cannot be certain whether or not her daughter gave her boyfriend permission to drive. As such, the Applicant further acknowledged that she did not have an occasion to exercise due diligence to verify the validity of the driver’s licence.

The Applicant attested that originally her daughter lied to her about the whereabouts of the vehicle and that she is currently not speaking to her daughter.

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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 21, 2013;
8201 v. Registrar of Motor Vehicles, 2013 CanLii 51152 (ON LAT);
R. v. Dalzell, 1983 CanLII 3506 (NS CA), [1983] N.S.J. No. 382;
R. v. O’Keefe, [1988] N.J. No. 361;
Hirshman v. Beal, [1916] O.J. No. 8;
R. v. DeMarco, [1973] O.J. No. 533.

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.

O. Reg. 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, 3^rded., 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 she feels that she is a victim in this situation, but feels better now that she understands her own driving record will not be affected.

In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly. In addressing the four grounds for appeal, the Registrar’s Agent first discussed the issue of hardship emphasizing that the Applicant does own another vehicle, thus does not meet the criteria of exceptional hardship, under the Act. With respect to the financial loss arising out of the impoundment fees, the Registrar’s Agent pointed out that since the legislation provides for the recovery of losses from the driver by the Applicant, the Tribunal cannot consider impoundment fees as a loss.

According to the Registrar’s Agent, the Applicant could not have exercised due diligence as the Applicant by her own admission did not at the time she met the suspended driver ask any questions about his driving record.

Lastly, the Registrar’s Agent addressed the possibility that the vehicle might have been stolen at the time of the impoundment. Although the suspended driver did not have the owner’s consent to drive, did he in fact intend to deprive the owner of the use of the vehicle temporarily or permanently? According to the Registrar’s Agent, the fact that the Applicant’s daughter lied to her implies that she gave her boyfriend permission to drive, and the Tribunal has no evidence to disprove this assumption. In fact, the Registrar’s Agent points out that both the police and the Justice of the Peace accepted this premise by refusing to lay theft charges against the suspended driver.

Given that the Applicant testified the vehicle was taken without her 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’ testimony, the Tribunal finds that the vehicle was not stolen. The Applicant surrendered care and control of the vehicle to her daughter who, albeit advised no one else was to drive the vehicle, was entitled to make decisions as to its use. Thus, there is no indication that the person to whom the car was given did not herself allow the suspended driver to take the vehicle. The Tribunal notes that the Applicant opted not to call her daughter as a witness, who could have shed some light on whether or not the vehicle was 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 O. Reg. 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 another vehicle.

The Tribunal accepts that the Applicant could not have exercised due diligence as she was not aware that the vehicle was being driven by anyone other than her daughter. Thus, the criteria for an appeal under the grounds of due diligence are not met.

As for the ground of the driver’s licence of the driver of the vehicle not being suspended at the time of impoundment, the Registrar’s evidence was not refuted, thus must be accepted by the Tribunal.

As such, the Tribunal finds that the criteria of section 10(1) of O. Reg. 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., Member

RELEASED: September 18, 2013