9174 v. Registrar of Motor Vehicles, 2014 CanLII 86270

Licence Appeal Tribunal

DATE: 2014-11-19

FILE: 9174/MVIA

CASE NAME: 9174 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.

9174 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant: George Vandenberg, Agent

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: November 7, 2014

REASONS FOR DECISION

A hearing was held on November 7, 2014, 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:

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: Appellant Motor Vehicle: 2013 VOLK JTD (the “vehicle”) Date of Appeal: October 21, 2014

By way of preliminary matters, the Tribunal heard a Notice of Motion filed by the Appellant to extend the period for appeal beyond the 15 days allotted.

The Appellant’s Agent explained that the appeal was 2 or 3 days late due to a myriad of reasons, one of which was the fact that neither he nor the Appellant were aware of the limited time period. Some of other reasons expressed by the Appellant’s Agent were that: it was the Thanksgiving weekend; he was moving his office; the Appellant was at school.

The Registrar’s Agent questioned the Appellant to ascertain the documentation that was given to him by the police officer at the time of impoundment. The Appellant responded that all he was given was a notice to appear in court. After contacting his Agent, the Appellant explained that he was advised to wait for the documents.

The Registrar’s Agent maintains that the Appellant received information to take steps to appeal within the prescribed time, but obviously did not. Another fact that the Tribunal normally considers, according to the Registrar’s Agent, would be if the Appellant was hospitalized, which he was not. The Registrar’s Agent argues that the statute should not be flouted so blatantly, and lastly, he contended that since the Appellant was the suspended driver, the chance for success in the appeal are minimal.

The Appellant’s Agent countered there was no intent to “flout” the statue, as the Notice to the Registrar was not received until the October 14th, 2014 and that at no time before that was the Appellant informed of the time to file an appeal. Further, the Appellant’s Agent maintains that the appeal has a good chance of succeeding as the Appellant was not informed of his licence suspension in Ontario and was, like most Canadians, not aware of the reciprocal agreement between the parts of the United States and Canada.

The Tribunal accepted the Appellant’s statement that he was not given the necessary documentation at the time of impoundment and granted the motion. In any event, the Tribunal notes that the Appeal is late by only two or three days, and there was not enough prejudice to the Ministry to justify the Registrar’s Agent’s vigorous opposition to this motion to extend time.

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, 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 written submissions filed with the Tribunal in support of the appeal, were entered as Exhibit #2. In the Notice of Appeal, the Appellant states that loss of the impounded vehicle will result in exceptional hardship. The Appellant contends that he had no idea that his licence was suspended in Ontario, since the conviction for impaired driving happened in the United States. The Appellant states that he cannot afford the costs of the impoundment.

During the hearing, the Appellant‘s Agent asked the Appellant to testify as to the events that transpired in the United States. According to the Appellant, he paid his fine in the United States and was told at the time that his licence was “restricted” for 30 days, meaning that he could use the car to go to or from work, medical appointments or court appointments.

The Appellant affirmed that the restriction applied to his licence was over on September 24, 2014, and that he never received any information as to a reciprocal agreement between the two countries.

On October 3, 2014, the Appellant explained that he pulled over to the side of the road to answer a call, when he was approached by the police officer who told him that his licence was suspended. Up until that time, the Appellant asserts that he was not aware of the suspension. After the impoundment, the Appellant attended the Ministry of Transportation in Sarnia, at which time he confirmed that his licence was suspended

In cross-examination, the Appellant testified that he finished school on October 17, 2014 and is currently employed as a pipe fitter apprentice, but has to take taxicabs to get to work.

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:

1. 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;
2. 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;
3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
4. 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 until August 21, 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:

1. 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.
2. 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.
3. 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.

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 reiterated the facts of the case, emphasizing that the Appellant was convicted in the United States and never informed of the existence of a reciprocal agreement. According to the Appellant’s Agent, the Appellant did not receive any notification from the Ministry of Transportation informing him of the suspension.

In a 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 exceptional hardship, the Registrar’s Agent pointed out that in light of the Regulation 638/98, the issue of alternative transportation must be considered, and not only is there public transportation available in the area, but also the Appellant has been able to take taxicabs, and therefore, alternative transportation is available.

The Registrar’s Agent pointed out that there has been no loss of income, as the Applicant is currently working.

Registrar’s Agent contends that “ignorance of the law is no excuse” – perhaps an explanation, but definitely not an excuse. The facts are the Appellant was suspended in the United States, and that under the reciprocal agreement the suspension is valid in Ontario. Thus, the argument that he was unaware of the suspension cannot be considered. The Registrar’s Agent maintains that a notice was sent out to the Appellant’s last known address, but that regardless of whether he received it or not, the suspension is active and valid the moment it is registered in the system.

The Registrar’s Agent took the position that the Tribunal has no jurisdiction to deal with any of the issues raised by the Appellant other than whether or not his licence was suspended at the time of the impoundment. However, the Tribunal decided to consider all the grounds for appeal that arose from the Appellant’s testimony presented at the hearing, and this included the issue of the Appellant believing that his licence had not been suspended in Ontario.

The Registrar’s Agent pointed out that “ignorance of the law is no excuse.” The Tribunal accepts this as a general legal principle for criminal or quasi-criminal charges. However, one of the relevant legislative provisions for this appeal is s. 50.2(3)(c), which refers to whether “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.” Therefore, it is relevant whether the Appellant was reasonable in knowing or not knowing about the suspended status of his licence. Evidence indicates that the Appellant did not follow up with Ministry of Transportation in Ontario or do any other checking about the validity of his driver’s licence, even though he had been convicted for impaired driving in the United States and had his licence suspended there. The Tribunal finds that due diligence would require at least some inquiry by the Appellant about whether his licence in Ontario had been or would be suspended. Therefore, the criteria for due diligence according to s. 50.2(3)(c) of the Act is not met.

The other issue is whether the impoundment caused excessive hardship. Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:

10. (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, the Appellant is able to take taxicabs to work, and there is also public transit. The Tribunal has heard no evidence from the Appellant about any other difficulties with transportation. Thus, as alternative transportation is available to the Appellant, 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, Member

Released: November 19, 2014