Licence Appeal Tribunal

Tribunal d'appel en matière de permis

DATE: 2013-10-24

FILE: 8364/MVIA

CASE NAME: 8364 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.

8364 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: RUSSELL MCKNIGHT, Agent

Heard by teleconference: October 16, 2013

REASONS FOR DECISION

A hearing was held on October 16, 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: 2007 NISS VSA (the “vehicle”)

Date of Appeal: October 2, 2013

As a preliminary matter, the Registrar’s Agent requested that Tabs 1A and 1B be sealed as confidential as the person operating the vehicle at the time of impoundment is a minor.

Request granted.

As the Applicant did not receive the Registrar’s package, the Registrar’s Agent put forth all the documents that were used to show that the criteria for impoundment were met.

The Applicant having been given the options to proceed or adjourned, consented to proceed.

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 his knowledge or consent. The Applicant further states that the incident has caused exceptional hardship in that the vehicle is needed to take the grandchildren to daycare.

Due to a hearing impairment the Applicant requested permission to be represented by his wife at the hearing. The request was granted.

The Applicant’s wife also testified as a witness.

During the hearing, the Applicant’s wife reiterated the comments in the Notice of Appeal, testifying that, she while she was out of the country her daughter was given permission to drive the vehicle. Nonetheless, according to the witness no one else had permission to drive, and the person who was driving will neither suffer the hardship that the family is suffering, nor the cost.

The witness testified that she needs the vehicle to get to and from work and that the loss of the vehicle is very stressful.

According to the witness, her daughter actually asked to see and saw the suspended driver’s licence prior to allowing her to drive.

In cross-examination, the witness confirmed:

• that her daughter was intoxicated and allowed someone else to drive;
• her daughter did ask to see the licence;
• the witness is the primary user of the vehicle and has been able to get to and from work with the use of the family’s second vehicle;
• the grandchild has been able to get to daycare as well as friends are helping out.

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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 31, 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:

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, 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 asserted her plea to have the vehicle returned to lessen the stress on the household.

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 due diligence, although the Applicant claims that his daughter saw the suspended driver’s licence, nonetheless the law requires the owner of the vehicle to exercise due diligence to verify that the licence of any person who operates his/her vehicle is not under suspension. Thus due diligence was not exercised.

With regards to exceptional hardship, Registrar’s Agent, notes that there are alternate modes of transportation available to the Applicant. It was heard that the family has made adjustments and that the family owns another vehicle.

The only apparent loss are the impoundment fees which due to the fact the law allows the Applicant to recover from the suspended driver, cannot be considered by the Tribunal.

In rebuttal the Applicant’s Agent commented that while is true that the family has been able to make adjustments the stress level is quite high and taking at toll on the family,

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.

As for the possible grounds of due diligence, while the evidence suggests that the Applicant’s daughter actually looked at a driver’s licence, the Tribunal must consider the fact that it is up to owner of the vehicle to ensure that anyone driving the vehicle has a valid driver’s licence. The Tribunal might have considered the testimony of another party, had that person been called as a witness, which was not the case in this matter. Thus the criteria for due diligence was not met.

In regards to the possibility that the car could have been stolen, the evidence indicates that the suspended driver was asked to drive. The Tribunal finds 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.

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…

Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Looking at the Applicant’s current situation, it is clear that the Applicant and his family do have an alternate mode of transportation, albeit inconvenient. The Applicant’s wife has been able to get to work by using the second vehicle.

Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.

The Tribunal cannot assess exceptional hardship based on the cost of impoundment because the cost of impoundment is not a factor to be considered in section 10 of the Regulation. However, it should be noted that s. 50.2(27) of the Act states that the owner of a vehicle that has been impounded may bring an action against the driver to recover costs or other losses incurred by the owner in connection with the impoundment.

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 24, 2013