8993 v. Registrar of Motor Vehicles, 2013 CanLII 96097

Licence Appeal Tribunal

Appeal en matière de permis

DATE: 2013-08-26

FILE: 8993/MVIA

CASE NAME: 8993 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.

8993 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Nives Montano, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: August 19, 2014

REASONS FOR DECISION AND ORDER

A hearing was held on August 19, 2014, by teleconference to consider the Appellant’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 Appellant’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 Appellant

Motor Vehicle: 2000 Mercedes CS4 (the “vehicle”)

Date of Appeal: July 29, 2014

ISSUES

As set out in the Appellant’s request for hearing, the owner appeals on the basis that the driver's licence was not under suspension and that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(b) and (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 it 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 Appellant

A summary of the Appellant’s affirmed evidence follows.

The Appellant is a single mother of a four-year old special needs child. She is currently unemployed and until recently, was receiving government assistance. In her reasons for appeal, she states that she came to a financial agreement with the child’s father for monthly child support so she no longer qualifies for that government assistance, however, she is now receiving $100 less per month than before. The Appellant has been accepted at two community colleges in pursuit of a career.

The Appellant also lives with her boyfriend, the suspended driver at the time the vehicle was impounded. They have lived together since May 2013. He is currently unemployed and receiving government assistance. The monthly combined income for the Appellant and suspended driver is approximately $1,800.

A second vehicle was documented as being registered to the Appellant. She advised the Tribunal that her uncle had given her this vehicle but it was allegedly not roadworthy. The Appellant provided a receipt issued to a person named KS dated August 10, 2014, wherein KS purchased the 1999 Mercedes for $300, for parts.

Public transit is available, but the Appellant finds it difficult to utilize it with her child as he has “difficulty in social settings.” She has tried public transit in the past and “it was not a good situation.”

The Appellant receives a government subsidy for her child to attend daycare. According to the Appellant, her child is “extremely hyperactive,” “possibly autistic,” but she testified that her child is too young to be diagnosed with autism. The Appellant’s child must try to keep the “same routine” or he may get “out of control.” The child currently sees a speech therapist; psychologist and an assessment worker. The child has been receiving therapy since he and the Appellant moved to their current residence in May 2013 and has, according to the Appellant, made significant progress.

Since the vehicle’s impoundment, the Appellant’s mother, who resides in another community approximately one hour away, and who works part-time and is also on government assistance, has been assisting the Appellant three times per week by driving the child to and from daycare and various therapeutic appointments. On the days the child cannot attend daycare, the Appellant is home with him.

The child has missed three speech therapy appointments, one visit with the child psychologist, and three child assessment appointments during the impoundment period. There have been times when the speech therapist has gone to the daycare to help the child. The Appellant testified that she tried to get her child to the appointments, but has no friends, family or neighbours in her community that she can rely on. She will not reschedule any missed appointments until her vehicle is released from impoundment.

On the morning the vehicle was impounded, Office Gaiser had the Appellant’s residence under surveillance. A summary of Officer Gaiser’s testimony will follow. The Appellant, her child and the suspended driver were driving the child to daycare when police stopped the vehicle and arrested the suspended driver.

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 Appellant 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 Appellant 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 July 27, 2017.

Police Constable Mark Gaiser was affirmed and testified as having Badge 1286 stationed at the south division in Cambridge, Ontario.

Officer Gaiser was the investigating and arresting officer. He was in a uniformed capacity in an unmarked vehicle on the day the vehicle was impounded. He was familiar with the Appellant and suspended driver due to a prior domestic occurrence.

On the morning the vehicle was impounded, Officer Gaiser observed the suspended driver putting items in the rear passenger side of the impounded vehicle. The impounded vehicle was partially obscured by a cargo van on the property. There were several vehicles on the property belonging to other residents of the rooming house. The Appellant entered the vehicle on the passenger side. The vehicle left the property; Officer Gaiser “never lost sight of the vehicle.” Officer Gaiser believed the driver to be the suspended driver. Although the vehicle had a light tint on the windows, it was a sunny day and the driver was visible. Officer Gaiser observed:

1. The driver remove his seatbelt;
2. Significant movement in the vehicle;
3. A large silhouette appear in the center back window; and
4. The vehicle veering to the right shoulder of the road heading towards a ditch.

Officer Gaiser believes there was a switch in drivers; the Appellant was then in the driver’s seat and the suspended driver was curled up in a fetal position in the rear passenger seat, barefoot. The suspended driver was removed from the vehicle by Officer Gaiser; his rights were read and the suspended driver was arrested. Other officers were on site at this time. Another officer on site advised the Appellant to bring her child to daycare and return to the police station. Officer Gaiser was certain in his testimony that he observed the suspended driver driving the vehicle until the Appellant switched seats.

Once the Appellant returned to the police station, she was asked to provide a statement to which she refused. Officer Gaiser arrested her and she was charged with obstruction and dangerous driving. The vehicle was impounded from the police station. There was sufficient evidence to charge the suspended driver with criminal offences.

Officer Gaiser advised that as of August 16, 2014, the 1999 Mercedes which the Appellant allegedly sold to KS on August 10, 2014, was on the front lawn of the Appellant’s residence.

The Tribunal finds the testimony of Officer Gaiser credible and concise. The Tribunal did not regard his testimony as self-serving as put forth by the Appellant. His surveillance was based on public safety concerns in his duties as a police officer.

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 Appellant here appeals on the basis of sections 50.2(3)(b) and (d).

Issue 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 vehicle was detained in order to be impounded was made was not then under suspension?

Section 41 of the Act identifies the type of appeals for which a licence is suspended in sections 41(1)(a), (b), (c), (d), and (e) and 41(7) and 42(1) and 42(5) as follows:

41.(1) Subject to subsections 41.1 (1), (2) and (3), the driver’s licence of a person who is convicted of an offence,

(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;

(b) under section 249, 249.1, 249.2, 249.3, 249.4 or 252 of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle;

(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(c) under section 254 of the Criminal Code (Canada) committed in relation to,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40; or

(e) referred to in a predecessor to this sub-section,

is thereupon suspended ....

42.(1) The driver’s licence of a person who is convicted of an offence under subsection 259 (4) of the Criminal Code (Canada) or under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40 is thereupon suspended for a period of,

(a) upon the first conviction, one year; and

(b) upon a subsequent conviction, two years,

in addition to any other period for which the licence is suspended and consecutively there to.

(4) This section applies in the same manner as if a person were convicted of an offence if the person pleads guilty to or is found guilty of an offence referred to in subsection (1) and,

(a) an order directing that the accused be discharged is made under section 730 of the Criminal Code (Canada) or under a provision that is enacted by a state of the United States of America and that is designated by the regulations; or

(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders Act (Canada) or a youth sentence is imposed under section 42, 59, 94, 95 or 96 of the Youth Criminal Justice Act (Canada) or an adult sentence is imposed under the Youth Criminal Justice Act (Canada), including a confirmation or variation of the disposition or sentence.

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

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.

The section also provides that the Tribunal may not, except in certain circumstances, consider:

• 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 all of the following:

• 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.

The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.

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

As to the ground of the driver’s licence of the driver of the motor vehicle, at the time the vehicle was detained in order to be impounded, was not then under suspension, the Appellant stated in her reasons for appeal that “I was driving my special needs child to school like I do every morning.” Based on the evidence, the Tribunal concludes that the Appellant and the suspended driver may have noticed that they were being followed by police and in order to protect the suspended driver, the Appellant switched seats with him to avoid him getting caught. Her written statement is inconsistent with Officer Gaiser’s observations. Based on Officer Gaiser’s evidence, which was not refuted by the Appellant, the suspended driver was the initial driver of the vehicle before the Appellant switched seats with him. They had both been in control of the impounded vehicle while the vehicle was in motion, with the Appellant’s child in the back seat.

According to Section 55.1(1):

Where a police officer or officer appointed for carrying out the provisions of this Act is satisfied (emphasis added) that a person was driving a motor vehicle on a highway while his or her driver’s licence is under suspension under section 41, 42 or 43 even if it is under suspension at the same time for any other reason, the officer shall detain the motor vehicle that was being driven by the person whose driver’s licence is under suspension. 2009, c. 5, s. 24.

The Appellant’s appeal therefore fails on the ground set out in subsection 50.2(3)(b) of the Act.

As to the ground of exceptional hardship, subsection 50.2(3)(d) is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the impounded vehicle.

The evidence put forward is as follows:

1. The Appellant’s mother has driven to the Appellant’s community three times per week since the vehicle’s impoundment to help transport the Appellant’s son to daycare;
2. The Appellant’s mother purchases groceries for the Appellant or the Appellant uses her mother’s vehicle to run errands and/or purchase groceries when she visits;
3. The Tribunal is unclear whether there is a second vehicle available to the Appellant. She advised that it was sold to a third party for parts on August 10, 2014 but Officer Gaiser testified that he observed the aforementioned vehicle on the front law at the Appellant’s place of residence on August 16, 2014;
4. Public transit is available but she is hesitant in using it since her child did not react well last time she used it;
5. Due to her financial struggles, the Appellant testified that she cannot afford taxis; and
6. The Appellant and her son are in good health; the community hospital is 20 minutes from the Appellant’s residence and the community is 911 accessible.

Given the foregoing, the Tribunal is very sympathetic to the Appellant’s situation, but finds that she has alternatives to the impounded vehicle. The evidence does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.

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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

____________________________

Nives Montano, Member

Released: August 26, 2014