8801 v. Registrar of Motor Vehicles, 2014 CanLII 30031

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-06-03

FILE:

8801/MVIA

CASE NAME:

8801 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

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Patricia L. Cassidy, Vice-Chair

APPEARANCES:

For the Appellant:

self-represented

For the Respondent:

Sanjay Kapur, Counsel

Heard in by teleconference

May 20, 2014

REASONS FOR DECISION

A hearing was held on May 20, 2014, by teleconference 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”).

THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for a total of 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 Acura 32T (the “vehicle”)

Date of Appeal: April 28, 2014

ISSUES

As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis 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?

FACTS

Evidence for the Appellant

A summary of the Applicant’s evidence follows.

The Appellant admits that she is the owner of the impounded vehicle and she had given her friend, herein referred to as “E.T.”, permission to operate the vehicle. Her evidence is that she is the registered owner of the impounded vehicle as well as another vehicle, a 2006 Nissan, bearing Ontario plate BNTA 356 and V.I.N. JN8BT08V76W208600. It is Appellant’s evidence that the 2006 Nissan is the vehicle she normally operates and the impounded vehicle is, for all intents and purposes, E.T.’s vehicle. She elaborated that the impounded vehicle is in her name but it is E.T.’s car; he paid for it and he used it for his employment as a Personal Support Worker with Bayshore Home Health which requires him to travel from one client to another throughout a large metropolitan area.

The Appellant’s evidence is that she is a Registered Nurse who is employed as a visiting nurse by the same company as E.T. She too is required to travel around a large metropolitan area to make house calls to a number of patients and many of the treatments she must administer are very time sensitive, including those for patients who require insulin treatments either at dinner time or at bedtime. Not all of her patient appointments are time specific but many are and public transit is not efficient enough to get her where she needs to be at the times she is required to be there. Her evidence is that she now requires the impounded vehicle because the 2006 Nissan vehicle, which she usually drives, is no longer drivable. She stated the Nissan needs new brakes and transmission work rendering it unsafe to operate, she stopped driving it 1.5 weeks before this hearing and is now taking buses but using public transit has made her late for a number of her patient visits. She also stated that her hours of work were cut back sometime in April 2014 and she is trying to build up her patient load again but is restricted from doing so by having to take public transit because it is difficult to get to the patients to provide the needed service. She elaborated that she needs a car to make money, that she was driving 2006 Nissan but now that it needs repairs, she requires the impounded vehicle so that she can get the Nissan repaired.

The Appellant’s evidence is that E.T. had told her his driver’s licence had been suspended on October 30, 2013 as a result of his having been charged for leaving the scene of an accident, that he had plead guilty to the charge and was, therefore, convicted. She understood he received a conditional sentence of 12 months probation with the conditions that he pay a fine, keep the peace and be of good behaviour and not operate a motor vehicle, except for the purpose of employment for a period of four months. The probation order, stating essentially what the Appellant understood it to say, was entered into evidence and forms part of exhibit 1.

The Appellant’s evidence is that E.T. advised her he had moved shortly after appearing in court and receiving that conditional sentence, including the suspension of his driver’s licence, and that he never received the Notice of Suspension from the Ministry of Transportation and that he was of the understanding that, as stated in his Probation Order, his licence was only suspended for 4 months and that he could still drive for the purpose of employment. The Appellant further stated that E.T. has advised her that he was stopped by police on December 28, 2013 for failing to stop at a stop light, that the police followed the probation order, returned his licence and the probation order to him and issued a ticket. The Appellant states that E.T. told her the police did not advise him that his licence was suspended by the Ministry. Further, the Appellant stated that on April 25, 2014, E.T. was charged with speeding. He was arrested and told his licence was suspended, he should not have been driving and the car he was operating was impounded. She stated that she did not know E.T.’s licence was under suspension since the four months indicated in his Probation Order had expired and she did not know of the 12 month suspension.

E.T. did not participate in the hearing and did not give evidence. Consequently, other than the documentary evidence confirming the terms of the Probation Order dated October 30, 2013, there is no corroboration of the evidence given by the Appellant. Nonetheless, I found her evidence credible. I believe her when she says she believed what E.T. told her.

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:

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 failing to remain at the scene of an accident contrary to section 252 of the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 30,2014.

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 provides:

(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.

Regulation 631/98 provides that the prescribed period, referred to above, is two years.

The owner may only appeal the impoundment on the 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.

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.

Further, Section 41(1)(b), (f) stipulates that anyone convicted of an offence certain provisions of the Criminal Code of Canada, including Section 252 thereof, is suspended from driving a motor vehicle for a period of 1 year:

Suspension on conviction for certain offences

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 subsection,

is thereupon suspended,

(f) upon the first conviction, for one year;

(g) upon the first subsequent conviction, for three years; and

(h) upon the second subsequent conviction or an additional subsequent conviction, indefinitely. 1997, c. 12, s. 1 (1); 2001, c. 9, Sched. O, s. 2; 2006, c. 20, s. 1; 2007, c. 13, s. 6 (1); 2009, c. 5, s. 10.

APPLICATION OF LAW TO FACTS

The evidence clearly established that the Appellant is the owner of the impounded vehicle, that the vehicle was being operated by an individual with the owner’s knowledge and consent and that the driver’s licence of the individual operating the vehicle was under suspension at the time the vehicle was impounded. The evidence establishes that the operator’s driver’s licence was suspended on October 30, 2013 as a result of his having been convicted of failing to remain at the scene of an accident, contrary to section 252 of the Criminal code of Canada.

The Appellant appeals the impoundment of her vehicle, alleging it is causing exceptional hardship however she has failed prove that. Rather, the Appellant has stated that she owns two vehicles: a 2006 Nissan which is her vehicle and the vehicle she operates as well as the impounded vehicle which was bought by E.T. and used by him, notwithstanding the fact that it is registered to the Appellant. At the time of the impoundment, the Appellant was driving the 2006 Nissan. At the time the Notice of appeal was filed, the Appellant was driving the 2006 Nissan and, sometime after the Notice of appeal was filed, the Nissan ceased to be roadworthy. The Appellant estimated that to be about 10 days prior to this hearing. Accordingly, it was subsequent to the filing of her Notice of Appeal.

Further, the Appellant contends that she requires the vehicle in order to facilitate her service to patients, that she is trying to rebuild her client base and using public transit makes that very difficult. If she had a vehicle to drive it would facilitate her ability to get to patient appointments in a timely fashion and give her the opportunity to increase her patient load. However, that impact is on the Appellant and not on the person ordinarily transported in the vehicle. The Appellant’s own evidence is that the reduction of her patient load and its impact on her hours of work has nothing to do with the impoundment of the vehicle, that the impounded vehicle was ordinarily operated by E.T., that the impounded vehicle was being driven by E.T. The evidence establishes that E.T. was and is a suspended driver notwithstanding the provision of his probation Order.

Finally, since E.T. did not provide any evidence in this hearing, much of the evidence provided by the Appellant cannot be corroborated. The only evidence with regard to whether or not E.T. received the Notice of Suspension from the Ministry of Transportation is the Notice of Suspension, dated November 4, 2013, sent by registered mail on November 6, 2013 which forms part of exhibit 2 in this hearing. That Notice states that E.T.’s licence was suspended for a period of 1 year, from October 30, 2013. The only evidence that E.T. did not receive that Notice is the uncorroborated hearsay evidence of the Appellant. The provisions of Section 41 of The Highway Traffic Act are clear that when one is convicted of an offence under Section 252 of the Criminal Code, there is an automatic suspension of one’s licence for the period of 1 year. That does not mean the Tribunal did not believe the Appellant was telling the truth as she knew or that the Tribunal is not sympathetic to the position she now finds herself in. Nonetheless, given the criteria the Tribunal must consider, as prescribed by the legislation, the Appellant has failed to prove her case.

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

Patricia L. Cassidy, Vice-Chair

RELEASED: June 3, 2014