8363 v. Registrar of Motor Vehicles, 2013 CanLII 69323

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-30

FILE:

8363/MVIA

CASE NAME:

8363 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:

Applicant’s wife, Agent

For the Respondent:

SONIA DE SANTIS, Agent

Heard by teleconference:

October 22, 2013

REASONS FOR DECISION

A hearing was held on October 22, 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: 2004 HYUN ASL (the “vehicle”)

Date of Appeal: October 1, 2013

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

ISSUES

As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded, that the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) (c) and (d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time the vehicle was detained in order to be impounded?

Should the Tribunal order the Registrar to release the motor vehicle on the basis 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 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. In the Notice of Appeal, the Applicant wrote that the vehicle was taken without her knowledge or consent. Her daughter’s boyfriend took the keys while she was sleeping. Charges are pending.

During the hearing, the Applicant reiterated the comments in the Notice of Appeal, describing the events that led to the vehicle being suspended.

In cross-examination, the witness confirmed that her daughter was sleeping when the suspended driver took the keys out of her daughter’s purse, to go and buy some food. According to the Applicant, the suspended driver had been previously warned by her daughter that he was not to drive the vehicle.

The Applicant testified that to her understanding her daughter had in fact laid charges of theft against the suspended driver and was surprised to hear that only she as the owner could lay charges of theft against someone.

When asked if her daughter had been unwilling to testify at this hearing, the Applicant responded that she was not “unwilling”, but that she was not aware of the proceedings and did not think of calling her daughter as a witness.

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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 16, 2014.

The Registrar’s Agent called Officer Greg MacDonald as a witness.

The witness testified as to how the vehicle came to be impounded, and then preceded to read from the information provided to him by the constable who actually spoke to the Applicant and her daughter.

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 section 50.2(3)(d).

The Shorter Oxford English Dictionary, 3^rd 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 asserted had she been aware of the law she would have laid charges against the suspended driver. According to the Applicant she was under the impression that since it was her daughter who had care and control of the vehicle that it was up to her daughter to lay charges. After speaking to her daughter, an officer was called and she did give a statement, which the Applicant assumed was actually the laying of charges.

In his summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.

The Registrar’s Agent maintains that there is no doubt the driver was under suspension.

With respect to the vehicle being stolen, the Applicant was not there at the time and cannot testify as to whether or not the vehicle was taken without the consent of her daughter. The daughter was not present to testify. The Registrar’s Agent maintains that it was not the intent of the suspended driver to steal the vehicle, he just intended to go and buy some food.

Although the Officer’s evidence went mostly unchallenged, it is also not relevant to these proceedings in that he has no direct knowledge of what transpired in the conversation between his partner and the Applicant and her daughter. His notes are strictly hearsay, as they were relayed to him by his partner.

The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)) of the Act.

The Tribunal concurs with the Registrar’s Agent that evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.

The Tribunal must now consider all possible grounds for appeal.

As for due diligence, it is evident that the criteria is not met as both the owner and the person who had care and control of the vehicle were not aware the vehicle had been taken.

Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:

10. (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…

The Applicant has alternate of transportation, thus regulation precludes the Tribunal from considering this section.

The Applicant maintains that the vehicle was stolen, the Tribunal sympathizes with the Applicant nonetheless, the only person who could have conclusively testified with respect to this issue, was the person who care and control of the vehicle, the Applicant’s daughter. Unfortunately she was not present to testify.

Thus, the Tribunal has no alternative but to find that the vehicle was not stolen at the time of impoundment, and therefore the criteria of section 50.2(3)(a) of the Act has been not met.

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: October 30, 2013