8754 v. Registrar of Motor Vehicles, 2014 CanLII 23590

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-06

FILE:

8754/MVIA

CASE NAME:

8754 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.

Appellant

Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

ADJUDICATOR:

Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant:

His wife, as Agent

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

April 30, 2014

REASONS FOR DECISION

A hearing was held on April 30, 2014, to consider the Appellant’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 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: 1999 FORD TSE (the “vehicle”)

Date of Appeal: April 10, 2014

Through fax dated April 29 & April 30, 2014, the Registrar sought to introduce new information obtained from an internet Google search to show that the Appellant has access to special transportation in his area.

Given that Rule 15.6(3) of the Tribunal’s Rules of Practice requires that disclosure be made a minimum of 5 days prior to the hearing, the Tribunal found the proposed evidence inadmissible as it had not been disclosed in a timely manner. All other documents were entered into evidence as exhibits with the consent of both parties.

ISSUES

As set out in the Appellant’s Notice of Appeal (Exhibit #2) and raised in his testimony at the hearing, the owner appeals on the basis that the vehicle was stolen as provided in section 50.2(3)(a) of the Act, and 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?

Should the Tribunal order the Registrar to release the motor vehicle on the basis that it was stolen?

FACTS

Evidence for the Appellant

The Appellant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, he states that:

1. The Appellant is a senior citizen living on a fixed income

2. The Appellant’s wife does not drive

3. The Appellant’s licence was suspended for medical reasons

4. Cost of transportation would result in financial strain

5. Public transportation is not accessible

6. Daily costs of the impoundment

7. Emotional Stress

8. Court Costs

9. Transportation is needed for:

Dr’s Appointments

Picking up prescription drugs

Groceries

Utility payments

During the hearing, the Appellant’s Agent testified as a witness, attesting that the vehicle is needed to keep doctor’s appointments and to buy groceries, as the family cannot afford the cost of cabs to “go away across town”.

The Witness admitted that she had rented a car to pick up groceries and that the drugs have been delivered.

As far as doctor’s appointments, the witness confirmed that a friend had taken the Appellant to required appointments and has agreed to take him to future appointments as well. Any appointments that might have been missed were not urgent.

The Witness testified that no enquiries have been made as to the possibility of assistance from community services.

According to the Witness there is public transportation available, a couple of streets over from where the Appellant lives. Although it is difficult for the Appellant to walk over, he has done so.

The Appellant stated that he is aware that there are 911 services available in his area, but has no idea how effective the services are.

As to how the car got in the possession of a suspended driver, the witness testified that since neither the Appellant nor she can drive, the car stays at the Appellant’s brother’s place. The procedure is that when they need to go anywhere, they will call the Appellant’s brother to take them. The Witness believes that probably the Appellant’s brother allowed the suspended driver to take the car.

The Registrar’s Agent tried to ascertain whether the Appellant’s brother had permission to give the car to anyone else. The Witness affirmed that some time ago, the Appellant’s brother asked and was given permission to lend the car to the suspended driver, nonetheless the witness was adamant that this time the brother-in-law did not ask for permission.

The witness maintained that she cannot “read minds” and therefore did not know if her brother-in-law just assumed that permission was still implied. According to the witness, they never specifically told the brother-in-law that this person was not to drive the car.

The Appellant testified that he had known the suspended driver for five or six years but had no idea his licence was suspended. He confirmed that he had previously given permission to the suspended driver to drive the vehicle.

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. A 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. A copy of the notice forwarded to the Registrar regarding the impoundment;

4. A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Ability Impaired, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for Life.

The Registrar called no other evidence.

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.

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 Appellant here appeals on the basis of subsection 50.2(3)(a) and (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.

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.

APPLICATION OF LAW TO FACTS

In closing, the Appellant’s Agent just asked to have the vehicle returned as the family cannot afford the cost of the impoundment.

The Registrar’s Agent noted that although the situation has been inconvenient the Witness testified that the Appellant had been able to rent a car to get groceries; the drugs have been delivered. According to the Registrar’s Agent the main issue is the Appellant’s health, nonetheless one important appointment was attended, the two missed were not urgent. There is also public transportation available which has been utilized by the Appellant.

The Registrar’s Agent argued that section 55.1 precludes the Tribunal from considering exceptional hardship on the basis of the costs of the impoundment. However, the Appellant may seek recourse through the courts according to section 55.1(27) to recover any losses from the suspended driver.

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

As for exceptional hardship, 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 Appellant’s current situation, it is clear that the Appellant does have an alternate mode of transportation, albeit inconvenient. Not only is there public transportation available, but also the Appellant was able to rent a vehicle and has been taken to medical appointments by a friend.

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

In regards to the possibility that the car could have been stolen, although it appears the Appellant himself does not consider that the vehicle to have been stolen, the Tribunal did examine the fact that the vehicle appears to have been taken without his direct consent. Evidence indicates that the suspended driver is known to both to the Appellant’s brother and to the Appellant, and that on a previous occasion the Appellant’s brother had asked for and was given permission for the suspended driver to drive the vehicle.

According to the witness’s testimony the person who had care and control of the vehicle was never told that he was not to lend the car to the suspended driver. In fact, the evidence is clear that the Appellant had previously given permission through his brother to allow the driver suspended for life to drive the vehicle, without asking for any verification of the validity of his driver’s licence.

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 not been 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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Presiding Member

Released: May 6, 2014