9396 v. Registrar of Motor Vehicles, 2015 CanLII 20239

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-03-20

FILE:

9396/MVIA

CASE NAME:

9396 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

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Nives Montano, Member

APPEARANCES:

For the Appellants:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

March 11, 2015

REASONS FOR DECISION

A hearing was held on March 11, 2015, at Toronto, Ontario, by teleconference to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).

THE TRIBUNAL ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.1(3) of the HTA, by Order dated March 12, 2015. These are the reasons for the Order.

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: 2014, Nissan VNS

Date of Appeal: February 18, 2015

Although not specifically stated in the Appellant’s Notice of Appeal, but raised through her testimony, the Appellant put forward the issue of whether the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension. It is incumbent upon the Tribunal to consider all of the evidence before it, and therefore that ground was also considered as a basis for this appeal. The Tribunal provided the Respondent Registrar with an opportunity at this hearing to address this ground of appeal.

ISSUES

As set out in the Appellant’s request for hearing (Exhibit #2) and in her testimony,, the owner appeals on the basis that the driver’s licence of the driver of the vehicle was not under suspension and that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(b) and (d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the driver’s licence of the driver of the motor vehicle at the time in respect of which the vehicle was detained in order to be impounded was not then under suspension?

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

The Appellant was affirmed before giving testimony. A summary of the Appellant’s evidence follows.

The Appellant is employed full time and is a single mother of two adult children who no longer reside at home. The Appellant’s daughter is 26 years old and a suspended driver. The night before the vehicle was impounded, the Appellant was going away for the weekend and asked her daughter’s male friend to drive her to her destination. The Appellant lent her vehicle to him on the proviso he would pick her up on Sunday, 2 days later. The Appellant is aware of her daughter’s suspension and has known her daughter’s male friend for “6 years” and trusts him “100%”.

Neither the Appellant’s daughter nor her male friend was available to attend the hearing to provide testimony but they recounted to the Appellant the circumstances surrounding the vehicle’s impoundment. The Appellant’s testimony revolved around her daughter who the police assumed had driven the vehicle.

During the early morning hours before the vehicle was impounded, the Appellant’s daughter and her male friend visited the home of 2 different friends. As the daughter’s male friend drove to the 2nd friend’s home arriving shortly after 5 a.m., they saw a police car parked, unattended, on the same street. The police were attending to a disturbance call at a different residence.

They parked the vehicle in the driveway and went into their friend’s home. Approximately 10 minutes later, the police knocked on their friend’s door and asked for the ‘girl to come out’ who belonged to the vehicle in the driveway. The police advised the Appellant’s daughter that they were looking for a similar vehicle with a female driver and female passenger. She advised the police that she was a passenger in the vehicle with her male friend as the driver. The police requested her identification and determined she was a suspended driver. She was arrested and taken to the police station and given a breathalyzer test which she passed. The Appellant’s vehicle, which was parked on private property, was towed and impounded.

The police issued no ticket and no documentation regarding the incident.. After the Appellant was made aware of her vehicle’s impoundment, she called the police station and was advised that there was “nothing on paper”, but after some time, the incident was pulled up on the computer. Due to the police officer being off shift, the Appellant had to wait a number of days before he returned her call. Once she finally spoke to him, she advised him that she had a small window of opportunity to file an appeal regarding her vehicle’s impoundment. She further informed the police officer that he did not provide her daughter and/or herself with a copy of the Notice to Registrar regarding the incident. The police officer personally delivered the paperwork to the Appellant at her home.

The Appellant testified that she filed her Notice of Appeal with the Tribunal the day after the paperwork was delivered to her – 10 days after her vehicle’s impoundment.

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 officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was allegedly 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 March 19, 2015.

The Registrar’s Agent confirmed that he did not contact and/or obtain a sworn affidavit from the police involved with this incident.

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.

The Appellant here appeals on the basis of section 50.2(3)(b) and (d). In considering subsection (d), the Tribunal is cognizant of the definitions of the words ’exceptional’ and ‘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:

• 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.

The Regulation also 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 his closing submissions, the Registrar’s Agent asked the Tribunal to confirm the decision of the Registrar. He also submitted that the Appellant’s testimony is considered hearsay and that her daughter’s account is “self-serving”. He requested the Tribunal to only deal with the ground of exceptional hardship and to disregard other arguments that arose from the Appellant’s testimony.

The first issue before the Tribunal concerns the application of section 50.2(3)(b), that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension. Central to this determination is the identity of the driver of the motor vehicle at the specific time. The evidence with respect to the driver of the motor vehicle comes from two sources. The first source is the Notice to Registrar.

A certified copy of the Notice to Registrar was relied upon by the Registrar, which was prepared from information provided by the police, who was under a duty to enter that information at the time of the incident. A Notice of Impoundment is then issued based on the Notice to Registrar. These documents are to be completed and their contents accepted as bona fide.

The Tribunal heard the evidence from the Appellant regarding the fact that the police did not provide the Appellant’s daughter with a copy of the Notice to Registrar the morning the vehicle was impounded; that the police did not notify the Registrar of the vehicle’s impoundment for numerous days, since the Notice of Impoundment was issued 8 days after the vehicle’s impoundment, and did not provide the Appellant with copies of the documentation when these were first requested by her.

Section 55.1(1) states:

Where a police officer or officer appointed for carrying out the provisions of this Act is satisfied that a person was driving a motor vehicle on a highway while his or her driver’s licence is under suspension under section 41, 42 or 43 even if it is under suspension at the same time for any other reason, the officer shall detain the motor vehicle that was being driven by the person whose driver’s licence is under suspension

Against the documentary evidence, the Tribunal heard the evidence from the Appellant which was forthright and credible. The Tribunal can accept hearsay evidence and assess its weight. The Appellant stated in her evidence was that her daughter and her friend arrived at the house shortly after 5 a.m. This accords with the timing noted on the Notice to Registrar; the time of the incident was 5:30 a.m. Given that it was still dark shortly after 5 a.m. on February 7th, it is reasonable to infer that it would be difficult to clearly identify the gender of two persons travelling in a moving vehicle, especially if the police were not in their vehicle as the car passed, but at a residence dealing with a disturbance complaint. The police stated to the Appellant’s daughter that they were looking for a ‘similar vehicle’ with a ‘female driver and female passenger’. The Tribunal has no evidence before it from the police regarding their grounds for or the circumstances of the arrest of the Appellant’s daughter

The Appellant was proactive in chasing down and speaking with the police officer involved in this matter. In her determination, she was able to obtain the necessary documentation, approximately 10 days after her vehicle’s impoundment, from police in order for her to file this appeal within the necessary timeframe.

The Appellant very clearly stated that she was aware of her daughter’s licence suspension.

She gave the car to her daughter’s friend who she trusted implicitly. The Tribunal accepts the evidence that it was he who was driving the vehicle that morning when the police saw the vehicle drive past. Indeed, given the particular circumstances, where the impoundment was issued in respect of a parked vehicle which at the time of issuance had no person behind the wheel, that is the most compelling evidence regarding the driver of the vehicle before the Tribunal. There is no evidence that the male’s licence was then under suspension. The Tribunal therefore finds in favour of the Appellant with respect to section 50.2(3)(b) of the Act.

Having made the finding with respect to the driver of the vehicle, it is not necessary to decide the issue of exceptional hardship.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.

LICENCE APPEAL TRIBUNAL

Nives Montano, presiding Member

RELEASED: March 20, 2015