Date 2019-03-04
Tribunal File No.: 11602/MVIA
Appeal filed pursuant to section 50.2 of the Highway Traffic Act, LRO 1990, c. H.8 (the “Act”), regarding the impoundment of a motor vehicle for driving while suspended, pursuant to section 55.1 of the Act
A.T.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Member: Matthew M. Létourneau
Appearances: Appellant Sonia De Santis, Respondent’s Representative Michael Lashley, Interpreter, French–English Shahed Abdul-Dayem, Court Clerk
REASONS FOR THE DECISION AND ORDER
OVERVIEW
1The Appellant is the owner of a 1985 Mercedes 190D (“the Appellant’s vehicle”), which was the object of two separate cases of towing and impoundment; the Appellant personally paid the costs to release the vehicle in 2018. He lodged an appeal with the Tribunal by filing two notices of appeal, one for each of the two impoundments, requesting the release of his vehicle in order to have the impoundment costs reimbursed. The Registrar of Motor Vehicles (“the Registrar”) refuses to pay the said costs on the grounds that neither the Registrar nor the Tribunal has the legal authority to reimburse them. Both appeals were filed after the deadlines. The Tribunal accepted the Appellant’s motion to extend the deadlines and hear the appeals.
2A bilingual hearing took place on November 28, 2018 to hear the Appellant in person, as well as the Registrar of Motor Vehicles, represented by Sonia de Santis. A court clerk and a French–English interpreter were also present.
3For the reasons set out below, the Tribunal dismisses the Appellant’s appeals on the grounds that it does not have the legal authority to grant the Appellant’s request.
ISSUES
4The issues are:
a. Does the Tribunal have the legal authority to decide the Appellant’s appeal requests, i.e.:
i. Does the Appellant have the right to have his vehicle released as requested in his notice of appeal dated September 4, 2018?
ii. Does the Appellant have the right to have his vehicle released as requested in his notice of appeal dated November 5, 2018?
INFORMATION
5The Tribunal notes first and foremost that the documents in this case were incomplete and that significant details from both the Appellant and the Respondent regarding the nature of the impoundment were missing.
6In particular, the Notices to the Registrar concerning the notices of suspension and impoundment were incomplete, and there were no documents or police testimony that could detail the grounds for the impoundments.
7The Tribunal considered the testimony of the Appellant as well as the following documents:
a. A notice of appeal of the impoundment of the Appellant’s motor vehicle dated September 4, 2018 (Exhibit 1), including a notice of motion to extend the deadline for filing an appeal, an invoice from Vaughan Collision Centre dated November 24, 2017, and two notices to the Registrar about the notices of suspension and impoundment;
b. A notice of appeal of the impoundment of the Appellant’s motor vehicle dated November 5, 2018 (Exhibit 2), including a notice of motion to extend the deadline for filing an appeal of the seizure/release of a motor vehicle;
c. An invoice from Allan’s Garage dated September 7, 2018, in the amount of $310.75 (Exhibit 3);
d. A copy of a special, 10-day registration permit in Ontario, expiring on November 23, 2017 (Exhibit 4);
e. A copy of the searches in the driver abstracts for the provinces of Quebec, Ontario and British Columbia (Exhibit 5);
8On December 4, 2018 the Appellant wrote to the Tribunal to indicate that he wished to submit other documents in support of his appeals. The Tribunal did not receive any documents by the decision date, which was several months after the hearing. The documents will not be accepted, given that a reasonable period of time during which they could have been submitted has passed.
ANALYSIS
9The first issue for this Tribunal is to determine whether it has the legal authority to hear the Appellant’s appeals. The Appellant requested the release of his vehicle with respect to two impoundments. The Appellant was able to have his vehicle released to him after each impoundment, but he is seeking an order from this Tribunal so that he can ask the Registrar to reimburse the related expenses.
10The Tribunal has the legal authority to decide the issues in this case when the appeal concerns an impoundment imposed pursuant to section 55.1 of the Act. In other words, the Tribunal can only act when the driver’s licence was suspended as provided for in sections 41, 42 or 43 of the Act and when the impoundment is long term, i.e. 45 days or more, as defined in the Act.
11After having determined its legal authority, the Tribunal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Appellant’s vehicle released. The Tribunal cannot order reimbursement of the expenses related to the release of the Appellant’s vehicle. Reimbursement is made pursuant to subsection 50.2(7) of the Act if the Tribunal orders the Appellant’s vehicle to be released.
12The Tribunal finds that, in this case, the onus is not solely on the Appellant to demonstrate that the Tribunal has the legal authority to hear the appeal. For example, the police officer has a duty under subsection 55.1(5) of the Act to prepare a notice identifying the duration and location of the impoundment, among other things. That notice is served on both the Appellant and the Registrar. In the case before us, a notice was produced, but it was incomplete. The Tribunal cannot accept that it is up to the Appellant alone to establish the status of his licence as well as the legal status of the impoundment. The Tribunal may take note of all information submitted when making its determination as to its legal authority to act in this case.
13With respect to the first impoundment on November 24, 2017, the Tribunal is unable to conclude, after considering all the evidence that the impoundment allows the Tribunal to accept the legal authority to decide in his favour. The documents provided established, first of all, that the Appellant’s Ontario driver’s licence was not the object of a suspension referred to in subsection 55.1(1) of the Act. The Tribunal finds that the police made the arrest for another reason. In addition, the suspension was not for a period of 45 days or more.
14With respect to the second impoundment on August 18, 2018, the Appellant submits that the seizure of his vehicle by the police was unlawful. The Registrar does not dispute that fact. However, the Registrar disputes the fact that the Tribunal has the legal authority to decide in favour of the Appellant. The Tribunal determines that the Tribunal does not have legal authority over the second impoundment and that the Appellant’s appeal must be dismissed.
15The Tribunal finds that in both cases the Appellant was able to have his vehicle released in less than 45 days. Even though the Appellant was unable to appear within 45 days to have his vehicle released, neither of the impoundments is among those referred to in section 55.1 of the Act, which means that the Registrar did not prevent the Appellant from getting his vehicle back within 45 days. Therefore, the Tribunal does not have the legal authority to hear the Appellant’s two appeals and they are accordingly dismissed.
The first impoundment on November 24, 2017
16The Appellant filed a notice of appeal of the impoundment of a motor vehicle on November 5, 2018. The said notice of appeal relates to the costs of towing the Appellant’s vehicle and its impoundment on November 24, 2017, which lasted until February 16, 2018. The Tribunal finds that the reason for the suspension was not among those described in section 55.1 of the Act, and that neither the police officer nor the Registrar ordered the impoundment to last 45 days or more.
17The Appellant argued that, if the Tribunal has the legal authority to hear his appeal, his vehicle was impounded for a charge of which he was subsequently acquitted, that he had taken the necessary steps to check that he was not subject to a suspension, and that the impoundment would cause exceptional hardship.
18The Appellant left Yukon for Quebec to appear before the Court of Québec on the criminal charges against him. He was arrested en route by the Ontario Provincial Police. The Appellant testified that he understood that the arrest was due to the suspension of his driver’s licence which he was unaware, and was the subject of a conviction for which he had been acquitted after the fact. He was incarcerated following the incident of November 24, 2017. Even if the Tribunal accepts that testimony, it cannot conclude that the period of impoundment was for more than 45 days nor that it occurred because of a suspension referred to in section 55.1 of the Act.
19Regarding the seizure of the Appellant’s vehicle, and as specified below, the officer must prepare a notice of impoundment as soon as possible. The notice produced during the hearing was illegible, and no grounds for impoundment were indicated on the form. At the very least, the information provided does not confirm that the suspension was one of the types described in section 55.1 of the Act. The Appellant produced three copies of the searches in the driver abstracts for the provinces of Quebec, Ontario and British Columbia, which showed that his driver’s licence had not been suspended before he travelled to Quebec. However, that information precedes the date of arrest and provides no further confirmation of the reason for the seizure and impoundment. Based on the information provided at the hearing, the Tribunal must conclude that it is more likely that the seizure and the impoundment were not made for the reasons set out in section 55.1 of the Act.
20The Appellant spent one month in prison at the Central East Correctional Centre and was subsequently transferred to Quebec. He did not have the money to pay his bail. He was released in February 2018 but not allowed to drive due to the suspension of his driver’s licence imposed after his arrest. As a result, he was unable to pick up his vehicle before February 16, 2018.
21During that time, the Appellant’s vehicle was impounded at Leaders Towing until February 16, 2018, when the Appellant appeared to pick up his vehicle and pay Vaughan Collision Centre's invoice in the amount of $1,130.00. That amount represents $250.00 in towing charges and $750.00 for three months of storage.
22Even though it had taken the Appellant more than 45 days to pick up his vehicle, there was no order in the file indicating that the duration was to exceed 45 days. The Tribunal concludes that this case of impoundment is not among those that give rise to a release and reimbursement by the Tribunal pursuant to the Act. The appeal of the said impoundment is dismissed.
The second impoundment on August 18, 2018
23The impoundment on August 18, 2018 does not fall under the cases described in the Act which grant the Tribunal legal authority to decide in favour of the Appellant, since it was for a period of fewer than 45 days.
24The Appellant filed a notice of appeal of the impoundment of a motor vehicle on September 4, 2018 with respect to the towing and impoundment on August 18, 2018
25On August 17, 2018 the Appellant was arrested by the Ontario Provincial Police near Berkeley, Ontario. The police charged the Appellant under sections 259(4)b) and 145(3) of the Criminal Code and took him to the Central North Correctional Centre in Penetanguishene, where he waited for his bail hearing.
26The notice of impoundment produced at the hearing before the Tribunal was illegible and incomplete within the meaning of subsection 55.1(5) of the Act.
27Allan’s Garage, a towing service, was called to impound the Appellant’s vehicle and picked up the vehicle on August 18, 2018. The towing expenses came to a total of $310.75. According to the notice of seizure/release of a motor vehicle, the police officer indicated that the seizure was to end on October 3, 2018 (i.e. 45 days after the impoundment).
28However, the impoundment was not formalized within the meaning of section 55.1 of the Act. The vehicle had been towed, and there were storage costs. Despite the initial charges, the impoundment was not ordered for 45 days or more. The vehicle was made available within 45 days. The Registrar agreed that the vehicle should not have been seized, and confirmed that the suspension was for fewer than 45 days and that it could be got back. In light of those facts, the Tribunal determines that this case of impoundment does not confer legal authority on the Tribunal to release the vehicle under section 55.1 of the Act.
29The Appellant was released from prison and went to Allan’s Garage to have his vehicle released on September 7, 2018, at which time he paid the storage expenses of $310.75 and got his vehicle back.
30Having considered all the evidence submitted by the parties, the Tribunal finds that it is more likely that the impoundment is not among those that give rise to a release by the Tribunal pursuant to the Act. The appeal of the said impoundment is dismissed.
DECISION
31The Tribunal cannot decide in the Appellant’s favour with regard to the two appeals.
32Neither the impoundment of November 24, 2017 nor that of August 18, 2018 fall under section 55.1 of the Act, since the Appellant had the right to have his vehicle released within 45 days in both cases. As a result, the Tribunal does not have the legal authority to order the release requested by the Appellant.
33Since the Tribunal does not have legal authority in this case, there is no need to consider the Appellant's grounds for appeal as submitted pursuant to subsection 50.2(3) of the Act with regard to the absence of a suspension and proof of reasonable diligence or exceptional hardship.
ORDER
34Both of the Appellant’s appeals are dismissed.
LICENCE APPEAL TRIBUNAL
Matthew M. Létourneau, Member
DATE OF THE DECISION: March 4, 2019