Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving in contravention of condition.
Between:
A.M.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: A.M., Self-represented
For the Respondent: Stella Velocci, Agent
Place and Date of Hearing: Teleconference September 12, 2018
REASONS FOR DECISION AND ORDER:
Overview
1This is an appeal of a 45-day impoundment of a motor vehicle. The appellant is the owner and he requests that the Tribunal order the Registrar of Motor Vehicles (“Registrar”) to release his vehicle.
2A condition was imposed on the appellant’s driver’s licence that prohibited him from driving a vehicle not equipped with an ignition interlock device.
3On July 27, 2018, the appellant was stopped by the police driving a vehicle not equipped with the required device. The police impounded the vehicle for 45 days under s. 55.1(1) of the Highway Traffic Act, RSO 1990, c H.8 (the “Act”)
4That section allows for impoundment where a police officer is satisfied that a person is driving a vehicle in contravention of a condition prohibiting driving a vehicle without an ignition interlock device.
5As set out in his Notice of Appeal and refined during the course of the hearing, the appellant raised 5 grounds of appeal. In summary those grounds are:
(a) The statutory authority for the impoundment is s. 55.1(1) of the Act. According to the appellant, that section only allows for impoundment if the vehicle was driven by a person whose licence was under suspension. The appellant’s driver’s licence was not under suspension and therefore his vehicle could not be impounded under s. 55.1(1).
(b) The vehicle was impounded because of a contravention of a condition prohibiting him from driving a vehicle not equipped with an ignition interlock device. According to the appellant, he had scheduled the device to be installed on August 20, 2018, about three weeks after the impoundment.
(c) When the appellant was found to be driving in violation of his licence condition, he was also charged with “driving a motor vehicle - not equipped with ignition interlock device”, described by the police officer in the summons to be a contravention of s. 41.2(13)(13) of the Act. According to the appellant, he was charged under the wrong section of the Act. Since the police officer applied the wrong section of the Act “…as legal authority for the offence under which the motor vehicle was impounded,” the impoundment was invalid.
(d) The impounding officer failed to prepare and serve the driver with a notice containing specified details of the impoundment as required by s. 55.1(5) of the Act. According to the appellant, the officer’s failure to comply with those statutory notice requirements rendered the impoundment legally invalid.
(e) The impounding officer also failed to forward a valid notice containing the details of the impoundment and containing the officer’s signature to the Registrar as required by s. 55.1(5) of the Act. The officer’s failure to comply with that statutory requirement also rendered the impoundment legally invalid.
6The appellant also apparently appeals the impoundment on the basis of exceptional hardship. That ground of appeal was not raised by the appellant in his Notice of Appeal and was not argued by him at the hearing. However, a Case Conference Order was issued before the hearing which states that the appellant also appeals the impoundment on the basis that:
The appellant’s wife and children will suffer exceptional hardship from the impoundment due to their reliance on the vehicle for transportation to school and therapy appointments.
7Although the appellant made no submissions on that issue, some evidence on exceptional hardship was presented through the Ministry’s cross examination of the appellant and I have set out my findings on that issue below.
ISSUE
8Should the Registrar be ordered to release the appellant’s vehicle on any of the grounds raised by the appellant?
DECISION
9The impoundment is confirmed.
THE LAW
10Under section 55.1(1) of the Act, a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person in one of three circumstances specified in that section:
The licence of the driver is under suspension under s. 41, 42 or 43 of the Act.
The driver is driving in contravention of a condition imposed on his/her licence that prohibits the driver from driving a motor vehicle not equipped with an ignition interlock device.
The licence of the driver is under suspension for a prescribed reason under a conduct review program under s. 57 of the Act.
11Section 50.2 (1) of the Act provides that the owner of an impounded vehicle may appeal the impoundment to this Tribunal. On appeal, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle (Act, s. 50.2(5)).
12According to s. 50.2(3) of the Act, there are only 5 grounds upon which an owner may appeal an impoundment, and they are the only grounds upon which the Tribunal may order the Registrar to release the motor vehicle. That is made clear by the text of the section:
Grounds for appeal
(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;
(b.1) 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 subject to the condition described in paragraph 2 of subsection 55.1 (1);
(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 subject to the condition described in paragraph 2 of subsection 55.1 (1); or
(d) that the impoundment will result in exceptional hardship.
(emphasis added)
13With respect to the last ground of appeal – exceptional hardship - Ontario Regulation 631/98 (“the Regulation”), sets out the factors that that the Tribunal shall consider, and others that the Tribunal shall not consider, in determining whether exceptional hardship will result from an impoundment.
14Under s.10(1) of the Regulation, the Tribunal shall consider whether an alternative to the impounded vehicle is available to the owner and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle.
15Under s.10(2) of the Regulation, the Tribunal shall not consider whether the impoundment will result in inconvenience to any person.
16In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss, including using another vehicle and making arrangements to do without a vehicle.
THE IMPOUNDMENT
17The basic facts are not in dispute. The appellant is the owner of the impounded vehicle and was driving the vehicle when it was impounded on July 27, 2018.
18As a result of an earlier offence, a condition was imposed on the appellant’s driver’s licence which prohibited him from driving a vehicle unless equipped with an ignition interlock device. The condition was imposed effective February 25, 2016 and will expire on February 25, 2019.
19According to the appellant, he was out of the country and arranged for installation of the interlock device upon his return. The device was scheduled to be installed on August 20, 2018.
20However, he was stopped by the police on July 27, 2018 and, since he was found to be driving a vehicle without an interlock device in contravention of the condition, the police officer impounded the appellant’s vehicle for 45 days.
APPELLANT’S GROUNDS FOR APPEAL
(A) Exceptional Hardship
21I find that the impoundment has not resulted in exceptional hardship to any person.
22In determining whether exceptional hardship will result from an impoundment the Regulation requires the Tribunal consider whether an alternative to the impounded vehicle is available. To establish that there is no alternative, the owner must demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss, including using another vehicle and arranging to do without a vehicle.
23According to the appellant, he lives with his spouse and two children who are 5 and 8 years old. While his vehicle has been impounded he has been able to get around using public transportation. The appellant’s spouse has her own vehicle and uses it regularly to get to her work.
24The children need to be driven to school and therapy appointments. According to the appellant, on occasion his spouse or her father have been able to drive the children. On other occasions, the appellant had to arrange for a children’s transportation service which cost him $542.40 during the impoundment period.
25In determining whether the impoundment will cause exceptional hardship, the Tribunal is required to consider whether alternatives to the impounded vehicle are available. In this case I conclude that alternative transportation is available to the appellant and his family. Throughout the impound period, the appellant and his spouse have been able to get to work, and have been able to arrange alternate transportation for the children as needed. The impoundment has not caused the children to have missed any school or medical appointments.
26I therefore reject exceptional hardship as a ground of appeal.
(B) The Appellant’s Other Grounds for Appeal
27The appellant mainly argued and relied upon the five grounds for appeal summarised in paragraph 5 above.
28As mentioned, s. 50.2(3) allows only 5 permissible grounds upon which the Tribunal may order the Registrar to release the appellant’s vehicle. Of the appellants several grounds for appeal, only one of them – the first one - raises a permissible ground for appeal and my analysis with respect to that ground is set out below.
29The appellant’s other grounds for appeal do not correspond to any of the permissible grounds upon which the Tribunal may order release of the vehicle and therefore those grounds must therefore fail.
(i) The Appellant’s First Ground
30The appellant argues that the statutory authority for the impoundment in his cases. 55.1(1) of the Act and that section only allows for impoundment if the vehicle was driven by a person whose licence was under suspension.
31One of the permissible grounds for appeal is 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”.
32The appellant argues that he has grounds for appeal since his licence was not under suspension at the time of the impoundment.
33The appellant’s argument depends on his assertion that s. 55.1(1) only allows for impoundment when the driver’s licence is under suspension. However, a plain reading of that section makes it clear that s. 55.1(1) allows for impoundment in three circumstances. One of those circumstances is when the driver’s licence is under suspension but a second, separate circumstance is when the driver is contravening a condition requiring an ignition interlock device.
34Section 50.2(3) sets out the 5 permissible grounds for appeal and one of them is that the driver’s licence was not under suspension at the time of impoundment. That defence applies where the reason for the impoundment was the driver’s licence was under suspension. That defence has no application where, as in this case, the vehicle was impounded because of a contravention of a condition requiring an interlock device.
35There is a separate permissible ground of appeal available where the impoundment was because the driver was in contravention of a condition requiring an interlock device. That ground (contained in s. 50.2(3)(b.1)), allows the appellant to establish that the driver’s licence was not subject to the interlock condition at the time of impoundment. However, that appeal ground is not available to the appellant because his driver’s licence was subject to the interlock condition at the time of impoundment.
36In summary, the appellant’s first ground of appeal must fail. The fact that the appellant’s driver’s licence was not under suspension is not a ground for appeal where, as in this case, the impoundment was due to a contravention of a condition requiring an interlock device.
(ii) The Appellant’s Other Grounds for Appeal
37The appellant’s remaining grounds for appeal do not correspond to any of the permissible grounds for appeal set out in s. 50.2(3) of the Act and therefore must also fail.
38This Tribunal is a creation of statute – the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G. Section 3 of that Act states, “The Tribunal shall hold the hearings and perform the other duties that are assigned to it by or under any Act or regulation”.
39In other words, the Tribunal has no inherent jurisdiction. Its decision-making powers are limited to those assigned to it under the Licence Appeal Tribunal Act and other statutes and regulations.
40In this case, the Highway Traffic Act requires the impoundment of motor vehicles in specified circumstances. One of those circumstances is when a driver, as in this case, is found to be operating a motor vehicle in contravention of a licence condition requiring an ignition interlock device.
41The Act allows the owner of the vehicle to appeal the impoundment to this Tribunal and in the appropriate circumstances the Tribunal may direct the Registrar to release the vehicle.
42However, the Tribunal’s power is limited by s. 50.2(3) to consideration of the five permissible grounds for appeal. They are the only grounds upon which the Tribunal may release the vehicle.
43The appellant’s four remaining grounds for appeal do not correspond to any of the 5 permissible grounds for appeal and therefore this Tribunal does not have any basis upon which it can order the Registrar to release the appellant’s vehicle.
SUMMARY
44Section 50.2(1) of the Act provides that an owner may appeal a motor vehicle impoundment to this Tribunal. However, s. 50.2(3) states that there are only five specified grounds on which an owner may appeal, and upon which the Tribunal may order the Registrar to release the impounded vehicle.
45Exceptional hardship is a permissible ground for appeal under s. 50.2(3) of the Act. However, I conclude that the impoundment will not result in exceptional hardship because the appellant has access to an alternate vehicle.
46With respect to the appellants’ remaining 5 grounds for appeal only one of them corresponds to any of the five permissible grounds for appeal and for the reasons set out above I reject it.
47The 4 remaining grounds for appeal are not permissible grounds for appeal under s. 50.2(3). The Act prohibits me from considering any grounds other than those specified and thus all of those grounds for appeal must fail.
ORDER
48Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: November 2, 2018