10631 v. Registrar of Motor Vehicles, 2017 CanLII 23906

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2017-03-02

FILE:

10631/MVIA

CASE NAME:

10631 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

Raymond Ramdayal, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Steve Grootenboer, Agent

Heard by teleconference:

February 23, 2017

REASONS FOR DECISION AND ORDER

A hearing was held on February 23, 2017, 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 rules 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 the full 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, date of impoundment, and date of appeal in this matter are as follows:

Owner: The Appellant

Motor Vehicle: 2016, RAM, RTR (the “vehicle”)

Date of Impoundment: January 27, 2017

Date of Appeal: January 31, 2017

ISSUES

As set out in the Appellant’s request for hearing (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 to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

FACTS

Evidence for the Appellant

During the hearing, the Appellant reiterated the comments on the Notice of Appeal.

The Appellant stated that he operates a business with two employees, one of whom is the suspended driver. The Appellant owns two vehicles which he requires to fully operate his business and meet the needs of his customers. Since the impoundment, he has been operating his business at a reduced capacity as there are job contracts that he is unable to accept due to the loss of the vehicle. He resides with his girlfriend and her two year old child. His girlfriend attends school and the Appellant provides the income for the family unit. His girlfriend owns her own vehicle.

The Appellant described the circumstances surrounding the impoundment of the vehicle. The suspended driver has been employed by the Appellant for two years. He is also a friend. On the evening of the impoundment, the Appellant and the suspended driver went out for a drink after a long day at work. Upon leaving the establishment, the suspended driver drove the Appellant’s vehicle with the Appellant as a passenger. The vehicle was pulled over by the police, impounded, and the suspended driver was charged with an alcohol related offence.

In cross-examination, the Appellant acknowledged that it was the second time in the past year that the suspended driver had been stopped while driving the Appellant’s vehicle without a valid licence. He acknowledged the previous incident in January 2016, and stated that he assumed the suspended driver had a valid licence as he had taken a course. At no time did he ask his employee to see a valid licence or verify with the Ministry on the status of the licence. In the future, he plans to be more careful and now realizes the importance of validating his employees’ licences.

The Appellant acknowledged that he has a second vehicle and this vehicle has allowed him to maintain his business. Nevertheless he stated that there is some work he has refused as he cannot handle the work due to the loss of the impounded vehicle. When asked as to whether or not he has inquired about renting a vehicle, he stated he has not considered this option as he felt it may not be feasible given the nature of his work. When asked about whether or not the suspended driver could assist with the cost related to the impoundment, he stated he is not likely able to do so. The Appellant confirmed that the suspended driver is still employed with his company.

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 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; and

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on May 26, 2016 of Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended until May 26, 2017.

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)(d).

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.

The above 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 closing, the Appellant stated that the impoundment has created an additional burden as he is unable to fully operate his business and is experiencing financial losses. He is concerned about the loss of business and the long-term impact on his company.

The Agent for the Registrar indicated that the Appellant has an alternative to the impounded vehicle as he owns another vehicle which has permitted him to maintain his business and two employees. His family has not been impacted as his girlfriend owns a vehicle. Exceptional hardship, as defined by the Regulation, has not been met.

The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.

For this appeal to be successful on the exceptional hardship ground, the Appellant must first demonstrate that there is no alternative to the impounded vehicle. Section 10(4) of the Regulation states: “In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), 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.”

In this case, the Appellant’s testimony established that a reasonable alternative to the impounded vehicle does exist. The Appellant owns another vehicle which has allowed him to continue his business. His girlfriend owns her own vehicle and is able to attend to the daily needs of his family. There may be some inconvenience or additional costs, but that is not enough for the Appellant to pass the first hurdle for showing exceptional hardship.

Furthermore, even if the Appellant could meet the test of having no reasonable alternative to his impounded vehicle, he cannot meet the other parts of the legislated definition. For example, it cannot be said that the impoundment will result in a threat to anyone’s health and safety; nor does the cost of the impoundment on the facts of this case meet the requirement of being a financial loss that is “immediate, significant and lasting.” While the Tribunal appreciates that the Appellant is experiencing some loss of business as a result of the loss of the vehicle, the evidence shows that the Appellant has maintained his business and his employees and there has not been any significant loss of income or a threat to the security of his situation.

Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.

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 the full 45 days.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

Raymond Ramdayal, Member

Released: March 2, 2017