Licence Appeal Tribunal
FILE: 8832/MVIA
CASE NAME: 8832 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.
8832 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. Antoine A. Aouad., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard in Toronto: June 3, 2014
REASONS FOR DECISION
A hearing was held on June 03, 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: 1994 STRN SL2 (the “vehicle”) Date of Appeal: May 15, 2014
All 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), 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 Appellant’s evidence follows.
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: the vehicle is needed because his work requires that he drive “all over Ontario”; and he needs the vehicle to pick up his children on some weekends when he has access visits.
During the hearing, the Appellant testified that he simply gave the car to his mechanic for repairs. The suspended driver lives in the same premises, as the suspended driver and the Appellant left the car, and car keys, in the driveway, while he went to work, in order to have the brakes repaired. The Appellant attested that he never expected the car to be driven.
In cross-examination, the Appellant affirmed that he never discussed the issue of a driver’s licence with the suspended driver. The Appellant testified that he simply asked his neighbour to fix his car, as he had done a few times before. However, this was the first time that he left the car alone with the suspended driver as he is usually present when the car is being fixed.
The Appellant explained that he could not in good conscience say that the car was stolen as he left the car with his neighbour the suspended driver, not expecting it to be driven, and thus not thinking about driver’s licence validity.
The Appellant admitted to having another car registered in his name, but attested that his brother actually paid for it and uses it. The Appellant had no idea that he would be responsible for that vehicle.
At the present time, according to the Appellant he is self-employed, and has tried to obtain rides from others in order to get to his jobs. The Appellant has also been able to keep in touch with his children by biking or taking public transit.
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:
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;
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;
A copy of the notice forwarded to the Registrar regarding the impoundment;
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 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:
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.
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.
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)(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.
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 had nothing to add.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension.
The Registrar’s Agent argued that the appeal must fail on the grounds of due diligence, and that the vehicle was stolen, as by the Appellant’s own admission he did not exercise due diligence and does not feel the vehicle was stolen.
With regards to exceptional hardship, the Registrar’s Agent noted that although the situation has been inconvenient the Appellant has another vehicle registered under his name which precludes the Tribunal from making a finding under exceptional hardship.
The onus is on the Appellant 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.
In regards to the possibility that the car could have been stolen, evidence indicates that although the Appellant did not specifically allow the suspended driver to drive the vehicle, but he handed the car keys to him, and, he does not consider the vehicle to have been stolen. Thus 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 have been not met.
With respect to due diligence, by the Appellant’s own admission, stated that he did not exercise due diligence as he did not expect the car to be driven. The Tribunal finds that the requirements for due diligence under section 50.2(3)(c) of the Act were not met.
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:
- (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, the Tribunal totally sympathizes with the Appellant. However, although the Tribunal recognizes that the Appellant is not able to use another vehicle, it is unfortunate that he does have another vehicle registered under his name. Thus, having found that an apparent alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.
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: June 10, 2014