8351 v. Registrar of Motor Vehicles, 2013 CanLII 69342

Licence Appeal Tribunal

Appeal en matière de permis

DATE: 2013-10-18

FILE: 8351/MVIA

CASE NAME: 8351 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.

8351 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Douglas R. Wallace, Vice-Chair

APPEARANCES:

For the Applicants: Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: October 10, 2013

REASONS FOR DECISION

A hearing was held on October 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”).

THE TRIBUNAL CONFIRMS THE IMPOUNDMENT pursuant to section 50.2 (5) of the Act. 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 Dodge RPC Date of Appeal: September 23, 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 #1), the Applicant appeals on the grounds that the driver of the motor vehicle at the time it was detained was licensed as provided in section 50.2(3)(b) of the Act and that the impoundment 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 driver’s licence of the driver of the motor vehicle at the time in respect of which the vehcile was detained in order to be impounded was not then under suspension?

Should the Tribunal order the release of the motor vehicle on the basis that the impoundment of the vehicle will result in exceptional hardship?

FACTS

Evidence for the Applicant

A written summary of the Applicant’s position is attached as a letter to her Notice of Appeal.

At the hearing, the Applicant reiterated .her position that her granddaughter, a licensed driver, left Huntsville for a medical appointment in Orillia early one morning. Her granddaughter’s father accompanied her for his knowledge of the directions, but she drove all the way as her father’s licence was under suspension. The Applicant believed her granddaughter was driving at all times until the vehicle was stopped about an hour later by Constable Wright. Constable Wright impounded the vehicle in the belief that it was being driven by the granddaughter’s father whose licence was under suspension. In cross examination, the Applicant admitted that her evidence was simply a restatement of what her granddaughter and her son told her.

The Applicant testified that she lives on her old age pension and can ill afford the cost of impoundment of her vehicle. Although she has a number of other vehicles at her disposal, the loss of use of this vehicle restricts her son’s ability to do odd jobs in the evening with one of his brothers.

The Applicant’s granddaughter testified that she drove all the way until she was stopped by Constable Wright. Constable Wright’s vehicle came up behind the vehicle she was driving, passed it, stopped at the next side road and was facing the highway she was on as they went by. It then came up behind them again and stopped them. Having stopped them, the Constable ran up to the driver’s door and demanded she open it. She opened the window a little at this time, but there was some delay in opening her door. Both she and her father had their seat belts on. When the door was opened, the Constable asked for both her and her father’s licence.

The granddaughter’s father confirmed his daughter’s evidence in all respects and added that when Constable Wright asked for his licence, he objected, saying that he had not been driving. He was immediately removed from the passenger seat and handcuffed. He refused the Constable’s offer to call a taxi for them when the vehicle was impounded and phoned the Applicant instead who came to pick them up.

Evidence for the Registrar

The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:

1. Notice to Registrar of 45 day Impoundment of Applicant’s vehicle as a result the granddaughter’s father’s failure to produce a driver’s licence on the 10th day of September 2013.
2. Copy of Driver Record Search showing granddaughter’s father’s licence was suspended 7 times since 1982. The most recent suspension was on April 11, 2013 at which time his licence was suspended until l April 11, 2016 as a result of a conviction of an offence under the Criminal Code of Canada.
3. Notice to the Applicant of the impoundment of the vehicle until October 25, 2013 pursuant to Section 55.1 of the Highway Traffic Act.
4. Results of a search of the records of the Ministry of Transportation showing the Applicant to be the owner of two vehicles in addition to the vehicle impounded.

Constable Wright testified that he came up behind the Applicant’s vehicle and observed a smaller person in the passenger seat and a larger person in the driver’s position through the tinted rear window. He passed the vehicle, but could not see the identities of the people in the vehicle due to heavily tinted glass in the side windows. He accordingly pulled off onto a side road and turned facing the highway so he could observe the passengers in the vehicle more clearly through the windshield as it passed. At this time, he observed a man with a beard driving and a female passenger. He pulled out and followed the vehicle, observing the man and female changing positions through the rear window. He then stopped the vehicle and demanded the driver open the door. He had to repeat the demand several times before the driver’s door was opened. When the door was opened, he found the granddaughter behind the wheel and her father in the passenger position with his back to the passenger door and legs close to his daughter. Neither passenger in the vehicle had their seat belts done up. He impounded the vehicle on the grounds that the father, whose licence was suspended at the time, had been driving.

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded “where a police officer or officer appointed for carrying out the provisions of this Act is satisfied that a person was driving a motor vehicle on a highway while his or her driver’s licence is under suspension” under certain specified sections of the Act.

Subsection 50.2 (1) of the Act provides the motor vehicle owner’s right of appeal the impoundment 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.

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 subsection 50.2(3)(b) and subsection 50.2 (3) (d). 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 only 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

The Applicant’s submission is that her granddaughter was driving the vehicle at all times and that the vehicle should not have been impounded as she was a licensed driver.

After reviewing all the evidence, the Tribunal finds that it cannot accept this submission. The Constable testified that he saw the male occupant of the vehicle driving when he looked through the front windshield as it passed him and that he observed the two occupants of the vehicle changing places when he came up behind the vehicle to pull it over. The Applicant said in an aside that the Constable was lying but failed to give any reason in her testimony why he would do so. In the absence of any such evidence, the Tribunal prefers the evidence of the Constable over that of the Applicant and her witnesses who had clear motivation to deny that the unlicensed father was driving. The Applicant obviously had an interest in securing the early release of her vehicle without paying impound charges and the granddaughter’s father had an interest in avoiding the consequences of any convictions that might result from his driving while his licence was under suspension.

The Tribunal finds that the Constable’s evidence that he saw the male and female occupants of the Applicant’s car changing places is consistent with and supported by the evidence that the Applicant’s granddaughter took some time to open the driver’s door when requested to do so by Constable Wright.

Based on the evidence as a whole, the Tribunal rejects the Applicant’s claim that her vehicle was being operated at all times by her granddaughter.

The Tribunal has considered the Applicant’s evidence with regard to hardship caused by the loss of use of her vehicle while impounded and must also dismiss the Applicant’s claim for relief on his ground. Section 10 (1) of Ontario Regulation 631/98 provides that “in determining whether exceptional hardship will result from an impoundment, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available”. The evidence before the Tribunal falls far short of indicating hardship, much less exceptional hardship, and clearly shows that at least two other vehicles are available to the Applicant.

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

Douglas R. Wallace, Vice-Chair

RELEASED: October 18, 2013