Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8840/MVIA
CASE NAME: 8840 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
Impressions Concrete & Stone Inc. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Nadia Benvenuto-Gabriele, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: June 10, 2014
REASONS FOR DECISION
A hearing was held on June 10, 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: 2013 GMC, SAV (the “vehicle”)
Date of Appeal: May 9, 2014
ISSUE
Based on the Notice of Appeal (“NOA”) and the evidence presented by the Appellant’s Agent 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.
EVIDENCE FOR THE APPELLANT
A summary of the Appellant's evidence is as follows.
The Appellant's Agent confirmed the details contained in the NOA, stating that the company is a seasonal (spring and summer) concrete construction company and the impounded vehicle is the work vehicle used to transport all the tools, equipment and materials used on work sites. The vehicle is also used for trips to potential customers to provide quotes.
The Appellant's Agent confirmed the company had rented a van but found it "unacceptable" due to cost and the fact the rental is dirtied and potentially damaged from transported materials and concrete. Damage to the rental incurs additional costs for the company.
In cross-examination, the Appellant's Agent said that in addition to the rental, the company has also contracted out for the transport of heavy materials and personal vehicles have been used to get to meetings to provide quotes for new business. The driver of the vehicle at the time it was impounded, is an employee of the company and is currently working on a desk job.
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 reckless driving and fail to stop for a police officer under the Criminal Code of Canada, pursuant to which the licence of the driver is suspended until April 30, 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, 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.
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.
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 heard that the Appellant had found alternative means of transportation, for its business purposes, being the rental truck and personal vehicles. While these may not have been ideal or wholly affordable solutions, there was no evidence to show, on a balance of probabilities, that the loss of the impounded vehicle met the criteria as set out in the Regulations. There was also no evidence presented to show that the loss of the impounded vehicle had any immediate, significant, and lasting impact on the owner or on anyone who may ordinarily have been reliant upon the vehicle for transportation and access to it.
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 that it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: June 13, 2014