Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-06-10

FILE: 8817/MVIA

CASE NAME: 8817 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

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Simon Dann, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 28, 2014

REASONS FOR DECISION

A hearing was held on May 28, 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”).

THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT imposed by the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 55.1(3) of the Act.

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: 2003 Chev SIL (the “vehicle”)

Date of Appeal: May 9, 2014

ISSUE

Based on the Notice of Appeal (“NOA”) and the Appellant’s testimony at the hearing, the issue in this appeal is whether the loss of the vehicle will result in exceptional hardship as provided in section 50.2(3)(d) of the Act. The driver of the vehicle at the time of the impoundment was also the vehicle owner.

EVIDENCE FOR THE APPELLANT

A summary of the Appellant's evidence is as follows.

The Appellant confirmed the details contained in his NOA, stating that the impounded vehicle is the one vehicle, of the two he owns, that he can rely on for his company to continue working on the university grounds where he is currently contracted.

He stated that on a daily basis he needs the vehicle to transport workers and construction materials. It is also the only vehicle equipped to pull a trailer load of materials and construction debris. In the NOA, the Appellant claimed there is "no other means" for the company to perform its work.

In his testimony, the Appellant stated that because he was using alternate means to carry on with his work, there was also an issue of public safety.

In cross-examination, he explained he was using a forklift truck to move materials, and his other vehicle, a 2007 GMC pickup, is not equipped to carry heavy loads or pull the trailer loaded with masonry materials.

The Appellant said that because the work location has changed and he was travelling on university grounds, there were student complaints about his transportation vehicles. He also said he is expected to try and complete his work as soon as possible as the majority of students are now off for the summer.

The Appellant confirmed that he had not looked into renting a replacement vehicle for the impoundment period and concluded by stating that his contract was not in jeopardy. He said that "indirectly we are managing but it is becoming hard" and that if the vehicle was not released "we'll just have to keep on doing what we have been doing”.

EVIDENCE FOR THE REGISTRAR

The documents tendered by the Registrar and admitted into the record were as follows:

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;
Copy of the Notice forwarded to the Registrar regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had his driver’s licence suspended on February 24, 2014, due to a conviction on a charge of fail or refuse to provide breath or blood sample under the Criminal Code of Canada, pursuant to which the licence of the driver is suspended until February 24, 2015.

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:

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 section 50.2(3)(d).

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.

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 ground of appeal must be proven on the balance of probabilities by the owner of the vehicle.

APPLICATION OF LAW TO FACTS

In his closing submissions, the Registrar’s Agent pointed out that the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.

The onus is on the Appellant to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.

The legislation is clear in that losses cannot be considered when the owner and the suspended driver are one and the same, as is the situation in this matter. Therefore, the Tribunal is precluded from considering any losses that the Appellant may have incurred.

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. The Tribunal may not consider financial loss unless, as set out in section 10(3)(d), when the impact of the loss “will not be a result of a loss by the suspended driver” but as the Appellant was the suspended driver at the time of impoundment, the appeal must fail.

As such, the Tribunal finds that the criteria of section 10(1) of O. Reg. 631/98 are not 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