10383 v. Registrar of Motor Vehicles, 2016 CanLII 88923

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-08-30

10383/MVIA

10383 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

-and-

Registrar of Motor Vehicles

Respondent

Bryant Greenbaum, Member

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

August 24, 2016

INTRODUCTION

The Appellant appealed the impoundment of his vehicle, which was impounded on July 29, 2016, when a former co-worker drove his vehicle while his driver’s licence was under suspension. The Appellant stated that he did not ask the co-worker if his driver’s licence was in good order, and not suspended or expired. The Appellant also stated that he experienced exceptional hardship during this impoundment period, because he needed to take public transportation to occasionally visit his children, to occasionally attend to court-related matters, and to look for work. He also stated that impoundment fees may amount to more than the impounded car is worth. The possible grounds for this appeal are that the Appellant had exercised “due diligence” and that the impoundment has caused “exceptional hardship” as defined in the legislation.

The Tribunal found the Appellant to be a credible witness, but he does not meet the test set out in the legislation, in relation to due diligence or exceptional hardship, and therefore, the vehicle will remain impounded for the required 45 days.

Preliminary matters

The Appellant requested the use of a Tamil interpreter, namely his niece. The Respondent did not have any objections and the Tribunal was satisfied about the abilities of this interpreter. Also, a witness was called by the Appellant and his evidence was heard first, so he could thereafter be excused from the teleconference.

ISSUES

ISSUE 1

Did the Appellant prove that he had, “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”, as set out in section 50.2(3)(c) of the Highway Traffic Act?

The Appellant stated that he did not check with the co-worker to ask if his driver’s licence was in good order, and not suspended or expired. The Appellant stated that he failed to inquire about the driving status of his former co-worker, in any manner, before providing his car to that person. Rather, the Appellant, and a witness called by the Appellant, stated that they thought the co-worker had a driver’s licence because they had seen him drive into work on a few occasions. The above evidence clearly does not support the ground of “due diligence” and more is required than simply presuming that an acquaintance is properly licensed. More specifically, owners must actively inquire about the licensing status of drivers.

In this particular case, the suspended driver was someone who had lost his licence after a conviction that involved causing a death by the use of a motor vehicle.

ISSUE 2

Did the impoundment cause “exceptional hardship” within the meaning of section 50.2(3)(d) of the Highway Traffic Act?

The legislative test for this ground of appeal is very explicit and detailed.

Section 10 of the Regulation, Long-Term Vehicle Impoundment under Section 55.1 of the Act, requires that there is no alternative to the impounded vehicle. Section 10(4) states: “…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period”.

Even if the Appellant passes this hurdle of showing no alternative to the impounded vehicle, the Appellant must also show that the impoundment will result in a threat to health or safety, or that it will cause a financial, employment or education loss that will be “immediate, significant and lasting”. The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.

FACTS AND ANALYSIS

The Tribunal finds that there were reasonable alternatives to the Appellant’s impounded vehicle, even if they were inconvenient. Public transportation was available to the Appellant to attend to court-related matters, to see his children and to attend any job interviews, which in any event were speculative and yet to be confirmed. The Tribunal found that public transportation was suitable, because it did not disadvantage the Appellant, according to evidence on the record, other than being inconvenienced by slightly longer commute times. Furthermore, other options existed, as shown by the Appellant stating that he had received assistance from friends for travel arrangements on a number of occasions.

Furthermore, even if the Appellant could pass the hurdle of showing that he has no reasonable alternative to his impounded vehicle, which he has not done, the evidence still does not support a finding that the loss caused to the Appellant is a threat to health or safety. Nor, does the evidence support a finding that there has been an immediate, significant or lasting loss of money, employment or education.

No urgent health issues were mentioned. His search for employment has not been affected by using public transportation. He was able to walk to a grocery store, and family members cooked meals for him.

Finally, regarding immediate, significant or long-lasting economic losses, the Appellant became unemployed six months ago, and he is residing at his sister’s residence. The only economic hardship cited by the Appellant, in evidence, is the fact that impoundment fees may amount to more than the impounded car is worth. The Tribunal does not find this to be either significant or lasting.

The Tribunal finds that the evidence does not meet the requirements in the legislation to establish exceptional hardship as defined in section 10 of the Regulation. Though the Tribunal acknowledges that the Appellant seeks to see his children and improve his employment situation, the Tribunal must still assess the evidence and then apply the law as it is written in the Act and Regulation.

The Tribunal finds that the Appellant has not proven his appeal on the ground of “due diligence” or “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 confirms the impoundment of the Appellant’s motor vehicle, to remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

________________________

Bryant Greenbaum, Member

Released: August 30, 2016