Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8912/MVIA
CASE NAME: 8912 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.
1277403 Ontario Inc. o/a We Want Your Junk Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant: Casimo Commisso, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: July 15, 2014
REASONS FOR DECISION
A hearing was held on July 15, 2014, in Toronto to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 as amended (the “Act”). The Tribunal has reviewed the evidence and submissions and makes the following Order, and these are the reasons:
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: 1277403 Ontario Inc. o/a We Want Your Junk
Motor Vehicle: 2007 INTL 40S (the “vehicle”)
Date of Appeal: June 24, 2014
All documents were entered into evidence as exhibits with the consent of both parties.
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, all as provided in sections 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 is a corporation. The written submission filed with the Tribunal in support of the appeal entered as Exhibit # 1, was prepared by the corporation’s Agent. In the Notice of Appeal, the Appellant corporation states two reasons for the appeal:
- the company was misled by the suspended individual;
- the vehicle is necessary to allow the company to continue operating
During the hearing, the Appellant’s Agent opted to make a statement rather than give evidence on behalf of the Appellant corporation.
The Appellant’s Agent reiterated the statements on the Notice of Appeal, emphasizing the company is willing to pay all fines, but nonetheless the vehicle is essential to carry on business. The company does own other vehicles but none can be used for the same purpose.
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:
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 police 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 of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail To Provide Breath or Blood Sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 17, 2014.
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.
Regulation 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.
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.
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.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
In closing, the Appellant’s Agent stressed that as a small business, the business cannot operate without the impounded vehicle in the fleet.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
With respect to the ground for appeal stated by the Appellant’s Agent – mainly that the company was misled by the suspended driver – the Registrar’s Agent pointed out that ground does not exist within the Act. According to the Registrar’s Agent there is also no provision in the legislation to allow the vehicle to be released simply by paying fines.
As far as economic hardship, the Registrar’s Agent submitted that section 10(3) of Ontario Regulation 631/98 does not apply to corporations because it refers to loss to “a person ordinarily transported by the motor vehicle.” Furthermore, the Registrar’s Agent maintained that the company is still operating and has used whatever alternatives modes of transportation available, since the company owns other vehicles.
According to the Registrar’s Agent, there is no evidence that there are any health or safety concerns.
Regarding due diligence, the suggestion that the company was misled, the Registrar’s Agent contends that this is proof of lack of due diligence exercised by the Company.
The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3) of the Act.
As the Appellant’s Agent did not stipulate the grounds for appeal by selecting a specific section the Tribunal will briefly review all possible grounds.
First, there is no doubt that the driver at the time of impoundment was suspended. Further, according to the written evidence and the statement of the Appellant’s Agent, the company was “misled” by the suspended driver. The written evidence is clear that the corporation did ask for an driver’s licence abstract from this employee when he started. Nonetheless, when the employee returned for his second season, he was taken at his word and no licence validation checks were done. In these circumstances, due diligence was not exercised and the Tribunal so finds.
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. Given the evidence there is no doubt that the corporation does own several other vehicles. No evidence was introduced as to why any of these vehicles could not be used. The Tribunal finds that there were alternatives to the impounded vehicle, and therefore the exceptional hardship ground must fail.
Even if the Tribunal could consider the Appellant’s alleged losses, the Tribunal has not received sufficient evidence that there have been any losses, or that said losses would have an immediate, significant and long lasting impact on the business.
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: July 25, 2014