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
Between:
B.K.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Joanne E. Foot, Member
Appearances:
For the Appellant: No appearance by or on behalf of the Appellant
For the Respondent: Stella Velocci, Agent
Place and date(s) of hearing:
By Teleconference July 13, 2018
Hearing Continuance In Person September 6, 2018
REASONS FOR DECISION AND ORDER:
A. OVERVIEW
1The appellant appeals the impoundment of his motor vehicle by the Registrar of Motor Vehicles ("Registrar") pursuant to s. 55.1(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA").
2The respondent issued a Notice of Impoundment impounding the appellant's vehicle. At the time of impoundment, the motor vehicle was being operated by A.K., the son of the appellant and a co-owner of the vehicle. At this time, A.K.'s driver's licence was under suspension.
3The appellant filed a Notice of Appeal with the Licence Appeal Tribunal seeking to appeal the respondent's Notice of Impoundment.
4The question for my determination is whether the impoundment will result in exceptional hardship to the appellant.
5Neither the appellant nor any representative of the appellant appeared at the hearing.
6For the reasons set out below, I confirm the impoundment of the appellant's vehicle.
B. ISSUE
7The issue to be determined is whether the impoundment of the appellant's vehicle will result in exceptional hardship to the appellant.
C. LAW
8The owner of a vehicle that has been impounded pursuant to s. 55.1 of the HTA may, pursuant to s. 50.2 of the HTA, appeal the impoundment and request an order that the Registrar release the vehicle.
9An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:
(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.
10The appellant seeks to have his vehicle released on the basis that the impoundment will result in exceptional hardship.
11Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors relevant in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
...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.
D. EVIDENCE
12The appellant did not appear at the hearing. As a consequence, no evidence was presented to the Tribunal bearing on the question of whether exceptional hardship will result from the impoundment of the appellant's vehicle.
13The respondent's agent reviewed the respondent's submissions and established that the driver's licence of A.K. was suspended at the time the motor vehicle was impounded.
14The hearing was originally scheduled as a teleconference hearing on July 13, 2018 at 9:30 a.m. The appellant joined the teleconference hearing at that time but disconnected from the call just after the hearing commenced. Immediately following, both the respondent and the case management officer attempted to contact the appellant by telephone and by e-mail to reschedule the hearing. The hearing was adjourned to be continued as an in-person hearing. Having had no success in contacting the appellant, the in-person hearing was scheduled for September 6, 2018.
15The case management officer confirmed that the Notice of Hearing dated August 21, 2018 was sent to the appellant by email on August 21, 2018 and by mail on August 21, 2018. I am satisfied that the appellant was aware of the time of the hearing and chose not to attend.
16The burden of proof under Section 50(2) of the HTA and Subsection 10(4) of the Regulation is on the appellant. In the absence of any evidence, I find that the appellant has failed to establish on a balance of probabilities that exceptional hardship will result from the impoundment of his vehicle.
E. ORDER
17Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.
LICENCE APPEAL TRIBUNAL
____________________________
Joanne E. Foot, Member
Released: September 26, 2018