9516 v. Registrar of Motor Vehicles, 2015 CanLII 38744

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-05-27

FILE:

9516/MVIA

CASE NAME:

9516 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:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 13, 2015

REASONS FOR DECISION AND ORDER

A teleconference hearing was held on May 13, 2015, 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 pursuant to section 55.1(3) of the Act. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.

As the impoundment period expired the day after the hearing, the Tribunal gave an oral decision at the conclusion of the hearing, with reasons to follow.

These are the reasons for the Tribunal’s 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: 1996 GMC SIE (the “vehicle”)

Date of Appeal: April 7, 2015

ISSUE

As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.

Should the Tribunal order the Registrar of Motor Vehicles (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.

At the time of the impoundment of the vehicle, it was owned and being driven by the Appellant, the suspended driver in this case.

The Appellant testified that the impounded vehicle is a work vehicle. He operates a small roofing company and since the date of the impoundment on March 30, 2015, he has not been able to work and has not earned income.

He has not been able to locate another vehicle suitable for work or a licensed driver. As a result, two of his employees were laid off. He stated that the hardship he is experiencing is financial.

The Appellant lives in an urban area and resides with his girlfriend. He has the care of his two children, ages 5 and 3 years, from a previous relationship. His girlfriend is in her first year of college and relies on his vehicle to attend school three days a week. Since the impoundment, he was uncertain as to what arrangements she has made with the school. Although she has been home more often, she has borrowed her mother’s vehicle on two occasions. The youngest child attends daycare when his girlfriend goes to school. The older child attends school located about 15 minutes away. With the loss of the vehicle the Appellant has walked his child to school. He stated that two medical appointments for his children were cancelled and rescheduled. As far as health and safety, the Appellant stated that there are 911 services in his area.

On the day of the impoundment, the Appellant stated he drove his vehicle to his children’s school in a state of panic as he had learned from his girlfriend that his former mother-in-law had threatened to remove his children from school and from his home. According to the Appellant, his former mother-in-law is not pleased that he has the care of the two children. He alleged that she deliberately set up this trap, and expected him to panic and drive his vehicle, as when he arrived at the school, he was met by the police.

As a result, the vehicle was impounded and resulting charges were laid by the police.

In cross-examination, the Appellant re-affirmed that he has not earned income since the vehicle was impounded. As he could not get a vehicle for work or a driver, he elected to remain at home. He did not believe anyone would hire him for such a short period of time. He acknowledged that he had $3000.00 in savings to get him through the period of impoundment. He has been able to provide for the family necessities; however he has yet to pay his rent for this month.

The Appellant stated that there is public transportation available but he is not sure of the route or schedule. Friends and family have helped him out with transportation. He expressed some confusion about the status of his licence and stated he believed it to be only suspended for a period of one year and not three years as stated on the driver record. He candidly acknowledged that he had not previously made any inquiries with the Ministry of Transportation to verify his licence status and stated he now plans to do so.

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. A 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 being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;

3. A copy of the Notice forwarded to the Registrar regarding the impoundment;

4. A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on April 5, 2012, of impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 5, 2015.

The Registrar did not call any witnesses.

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.

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 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 pointed out that the vehicle was impounded correctly, and that exceptional hardship, as defined by the regulation, has not been 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 loss which the Appellant asserts is financial. The Tribunal may consider financial loss as set out in section 10 (3)(d) of the regulation, if certain conditions are met. The regulation is clear however, that the impact of the loss cannot be the result of a loss by the suspended driver. The Appellant was the suspended driver at the time of the impoundment. In this case, the impact of the loss of the vehicle is primarily on him, or will be the result from a loss by him. Therefore, pursuant to the regulation, the appeal must fail.

As such, the Tribunal finds that the criteria of section 10(1) of O. Reg. 631/98 has not been met.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirmed the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

Released: May 27, 2015