Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-06

FILE:

9115/CVIS

CASE NAME:

9115 v. Registrar of Motor Vehicles

Appeal under Section 50.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 82.1 of that Act

JBS Expedite Ltd.

Appellant

-and-

Registrar of Motor Vehicles (the "Registrar")

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Kenneth W. Koprowski, Vice-Chair

APPEARANCES:

For the Appellant:

Umaibalan Ravichandran, Agent

For the Respondent:

Matthew Peachey, Counsel

Heard in Windsor:

October 28, 2014

REASONS FOR DECISION AND ORDER

This is an appeal to the Licence Appeal Tribunal by JBS Expedite Ltd. (the “Appellant”) respecting an Impoundment of a commercial trailer pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

FACTS:

The trailer in question was impounded for the period of 15 days effective September 7, 2014, until September 22, 2014. The Order for Impoundment was made because of critical defects that were found in the brakes of the trailer on the date of inspection, which was September 7, 2014. The trailer was registered to Riordan Car & Truck Rentals Inc. as owner, as verified by the vehicle portion of the Certificate of Registration. The plate portion of the Certificate of Registration was in the name of JBS Expedite Ltd. A copy of both portions of the Certificate of Registration is found at Tab 4, page 25, of the Respondent’s Exhibit Book, filed as Exhibit #3.

The Appellant appealed on the ground that the impounded commercial trailer had no critical defects at the time of the inspection under section 82.1.

The matter came on for hearing on October 28, 2014. The parties and their witnesses were all present. At the commencement of the proceedings, counsel for the Registrar made a Motion, as a preliminary matter, for a declaration that the Appellant did not have standing to appeal the Order of impoundment. Counsel had previously informed the Appellant, by letter dated September 26, 2014, that he intended to bring the Motion before the Tribunal on the date scheduled for the hearing. He did not, however, inform the Tribunal of his intentions.

The ground for the Motion on which the Registrar relied was that the Appellant did not have standing to bring this appeal because the Appellant was not the owner of the trailer in question, and only the owner could appeal the Order for impoundment.

The Registrar’s Position

Counsel referred the Tribunal to section 50.3(1) of the Highway Traffic Act R.S.O. 1990 Chapter H.8 (“the Act”). That section provides that it is the owner of a commercial motor vehicle or trailer that is impounded under section 82.1 who may appeal the impoundment to the Tribunal. That section reads as follows:

50.3 (1) The owner of a commercial motor vehicle or trailer that is impounded under section 82.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.

Only the owner and the Registrar are parties to the appeal, by virtue of section 50.3(2) which provides as follows:

(2) The owner and the Registrar are the parties to an appeal under this section.

Further, section 50.3 (13) provides that the definition of “owner” is the same as its definition in section 82.1 of the Act. Subsection 13 states:

(13) In this section,

“commercial motor vehicle”, “operator”, “owner” and “permit” have the same meanings as in section 82.1.

Section 82.1 defines “owner” as follows:

82.1 (1) In this section,

“owner” means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and plate portion, means the person whose name appears on the vehicle portion;

At Tab 4 of Exhibit #3, page 25, is found a copy of the Certificate of Registration of the trailer in question. In the vehicle portion, the name “Riordan Car & Truck Rentals Inc.” appears. In the plate portion, the name of the Appellant appears. Therefore, by virtue of the above quoted sections of the Act, counsel argued that the Appellant had no standing to appeal the Order of Impoundment in this matter because its name did not appear in the vehicle portion of the Certificate of Registration.

Counsel argued that there was no ambiguity in the sections of the Act. The Act should be given its plain and ordinary meaning.

To further support his argument, counsel referred to a previous decision of this Tribunal in the matter of Transit Logistics Solutions Inc. v. Registrar of Motor Vehicles, [2014] O.L.A.T.D. No. 92 (“Transit Logistics”). In that case, the Appellant, Transit Logistics Inc., requested an extension of time to file its appeal. The Registrar opposed the request on the ground that the Appellant was not the owner of the trailer that was impounded. It was owned by another corporation. At paragraph 21 of the decision, dealing with the standing of the Appellant, Transit Logistics Inc., to appeal an order of impoundment, the following reasoning appears:

21 The Tribunal agrees that the Appellant does not have standing to appeal the Order of Impoundment of the trailer issued March 22, 2014. The owner of the trailer was Nova Logistics Inc. Section 50.3(1) clearly states that it is the owner who may appeal the Order of Impoundment. Transit Logistics Solutions Inc., the Appellant, is not the owner. Extending the time to appeal the Order does not, in the circumstances of this case, create a right for the Appellant that did not exist in the first place.

To the credit of counsel for the Registrar, he also referred to two other decisions of this Tribunal that came to different conclusions. On reviewing those decisions, they can be distinguished on their facts.

In the case 3235149 Canada Inc. o/a Real Transport v. Registrar of Motor Vehicles, [2013] O.L.A.T.D. No. 243 (“Real Transport”), the Appellant appealed an order to impound a trailer. The Registrar brought a motion for a declaration that the Appellant did not have standing to advance the appeal because the Appellant leased the trailer from GE Canada Leasing, so that the Appellant was not the owner of the trailer. In that case, the Appellant was based in the Province of Quebec. The Certificate of Registration issued by that province was a single piece document that did not have a plate portion and a vehicle portion, as the Ontario Certificate of Registration has. The two entities were identified on the Certificate of Registration. The Vice-Chair held that the Appellant in that case did have standing because its name appeared in the Certificate of Registration. At paragraph 3 of the decision, the Vice-Chair states:

3 The Applicant is based in the Province of Quebec. The Registrar drew the Tribunal's attention to the certificate of registration issued by that province (Ex 3. Tab 4, p.30). The certificate is a single piece document that does not have a plate portion and vehicle portion. Two entities are identified on the certificate, the lessor, GE Canada Leasing and the Applicant. In light of the definition of "owner" in the Act, given the fact that the Applicant's name appears on the certificate of registration, the Tribunal finds that the Applicant is an owner under the Act and, thus, has standing to bring this appeal.

In the case now before the Tribunal, the Certificate of Registration does, indeed, have a separate vehicle portion and plate portion, so that the Real Transport case can be distinguished on its facts.

In the case Nexcap Financial Corporation/Element Financial Corp. SMS Logistics Inc v. Registrar of Motor Vehicles, [2014] O.L.A.T.D. No. 24 (“Nexcap”), the Appellant appealed the impoundment of a trailer. The Vice-Chair deemed that the Appellant, SMS, was the true Appellant, and amended the style of cause accordingly. The Registrar brought a motion for a declaration that SMS did not have standing to advance the appeal because SMS was not the owner of the trailer. At paragraph 2 of the decision, the Vice-Chair states:

2 At the outset of the hearing, the Registrar brought a motion for a declaration that SMS did not have standing to advance the appeal. It was the position of the Registrar that the Applicant was not the owner of the trailer as that term is defined in the Act and that only the owner has standing. The definition of owner in s. 50.3 of the Act is set out in s. 82.1 (1):

• "owner" means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and plate portion, means the person whose name appears on the vehicle portion;

The certificate of registration identifies two entities, the lessor, and the Applicant. In light of the definition of "owner" in the Act, given the fact that the Applicant's name appears on the certificate of registration, the Tribunal finds that the Applicant is an owner under the Act and, thus, has standing to bring this appeal.

On reading the above, it is unclear whether the Vice-Chair was dealing with a certificate that had a separate vehicle portion and plate portion and whether there were different names on each. The case can be distinguished on the ground that, in the case now before the Tribunal, there is no question but that the Certificate of Registration has both a vehicle portion and plate portion and that the names on each are different.

The Appellant’s Position

The Appellant argued that the case now before the Tribunal is similar to the Nexcap case because, in that case, the Tribunal was satisfied that the Appellant was on the Certificate of Registration. The Appellant therefore argued that, since JBS Expedite Ltd. was on the Certificate of Registration found at Tab 4, page 25 of Exhibit #3, then it should have standing to institute this appeal. The Appellant’s agent relied heavily on the passage of the Nexcap decision quoted above.

The Appellant’s agent also acknowledged to the Tribunal that Riordan Car & Truck Rentals Inc. was the owner of the trailer in question and that JBS Expedite Ltd. leased it from the owner.

ISSUE:

The issue that the Tribunal had to consider was whether the Appellant had standing to appeal the Order of Impoundment as the owner of the trailer in question.

LAW:

In addition to the sections of the Act set out earlier in this decisions, section 50.3(5) of the Act sets out the powers that the Tribunal has in an appeal such as this. That section reads as follows:

Powers of Tribunal:

(5) The Tribunal may confirm the impoundment or order the Registrar to release the vehicle.

APPLICATION OF THE LAW TO FACTS:

For the reasons that follow, the Tribunal finds that the Appellant does not have standing to appeal the Order of Impoundment in this matter.

The Tribunal acknowledges, as the Appellant argues, relying on the Nexcap decision, that its name appears on the Certificate of Registration. Its name appears on the plate portion but not on the vehicle portion. However, to grant the Appellant standing to bring this appeal on the basis that its name appears somewhere on the Certificate of Registration is to ignore the very specific definition of “owner’ in section 82.1 of the Act. That definition bears repeating. It states:

82.1 (1) In this section,

“owner” means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and plate portion, means the person whose name appears on the vehicle portion;

(Emphasis is added)

The section is clear. It is specific. It is unambiguous. There is no reason that it should not be given its ordinary meaning. The Tribunal has no discretion to vary, amend or ignore the very plain meaning of that definition. The fact is that JBS Expedite Ltd. is not named in the vehicle portion of the Certificate of Registration. That being so, JBS Expedite Ltd. cannot, in the circumstances of this case, be considered the “owner” of the trailer in question, especially when the Appellant acknowledged that the trailer was owned by another. The consequence of that finding is that JBS Expedite Ltd. cannot appeal the Order of Impoundment in this matter because only the owner, as defined, above, can appeal.

Therefore, for all the foregoing reasons, the Tribunal grants the Motion of the Registrar to declare that the Appellant does not have standing to appeal the Order of Impoundment in this matter.

On a procedural matter, the Tribunal would be remiss if it did not bring to the attention of the Registrar that the motion that the Registrar brought in this matter on the very day of the hearing could have been brought in a more expeditious and timely manner, as a pre-hearing motion.

Although the Registrar notified the Appellant, by letter dated September 26, 2014, that he intended to bring such a motion on the date of hearing, the Registrar neglected to notify the Tribunal of his intentions. Had he done so, a pre-hearing motion date could have been scheduled before the actual hearing date, for the purpose of determining this jurisdictional issue. By doing that, the need for a hearing date to be scheduled, or for the hearing to actually proceed on that date, or for a hearing location to be reserved and witnesses required to attend and the incurring of all attendant costs could very well have been avoided.

DECISION:

Upon the application by JBS Expedite Ltd. to appeal the impoundment dated September 7, 2014, of a commercial trailer pursuant to Section 50.3 of the Highway Traffic Act, and having granted the Motion of the Registrar to declare that the Appellant has no standing to bring this appeal, and having considered the evidence filed with the Tribunal, and on having heard the submissions of the Registrar and of the Appellant;

IT IS THE DECISION OF THE TRIBUNAL that the impoundment be confirmed.

LICENCE APPEAL TRIBUNAL

Kenneth W. Koprowski

Vice-Chair

Released: November 6, 2014