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 of the Act.
Between:
Jade S. Hill
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Asad Ali Moten
Appearances
For the Appellant: No One Appeared
For the Respondent: Nora Challis, Agent
Heard by teleconference: September 13, 2019
OVERVIEW
1This matter arises from the impoundment of the appellant’s 2012 Volkswagen Golf on August 17, 2019. The car was impounded after the driver, who is not the appellant, was stopped by police and found to have a suspended licence. The car is subject to a 45-day impoundment and scheduled to be released on September 30, 2019.
2The appellant has filed her appeal on the basis that the impoundment of the vehicle will cause her exceptional hardship. She also claims that she was not aware that the driver had a suspended licence, though she had not claimed due diligence as ground of appeal.
3The Registrar is of the position that the appeal should be dismissed, and the impoundment confirmed because the appellant has not proved that the impoundment will cause exceptional hardship.
4A telephone hearing was scheduled for September 13, 2019. The appellant did not appear.
5I find that the appeal should be dismissed on the basis that the appellant has abandoned her appeal. I also find on the merits that the appellant has not satisfied her onus to prove that the impoundment will cause exceptional hardship. Therefore, the appeal is dismissed.
EVIDENCE, LAW, AND ANALYSIS
6The appellant filed her appeal by fax on August 20, 2019, providing a phone number and email address as contact information. As is the normal course for these matters, the Licence Appeal Tribunal, upon receiving the Notice of Appeal, scheduled a case conference and a hearing. A Notice of Case Conference and Notice of Hearing were sent to all parties on August 29, 2019. The Tribunal sent these notices to the email provided by the appellant.
7The appellant appeared at the case conference held September 6, 2019. At that case conference, the parties discussed the hearing date, and set dates for the exchange of documents to be relied upon at the hearing.
The appellant abandoned her appeal
8Section 7 of the Statutory Powers Procedure Act (the Act) permits the Tribunal to proceed with a hearing in the absence of a party who has been given due notice. Further, the absent party is not entitled to any further notice in the proceeding.
9Section 4.6 of the Act and Rule 3.4 of the Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission (October 1, 2017) (the Rules) provide for the grounds and process for dismissing a proceeding without holding a hearing. Both the Act and the Rules are silent, however, on dismissal due to abandonment at the hearing.
10The Act also provides that the Tribunal has the power to determine its own procedure and practices and may make orders in that respect that apply to any particular proceeding (see section 25.0.1 of the Act). In particular, the Tribunal has the power to make orders that prevent the abuse of its processes (see section 23(1) of the Act).
11Reading the above sections of the Act and Rules together, I conclude that the Tribunal has the power to order at a hearing that the appeal be dismissed as abandoned where the Tribunal is satisfied that the appeal is abandoned. Further, I read section 7 of the Act to not require the Tribunal to provide prior notice of its intention to dismiss the appeal on this ground to the absent party.
12Turning now to the procedural facts of this case, I find for the following reasons that the appellant has abandoned her appeal:
A. The appellant received the Notice of Case Conference and Notice of Hearing at the same time on August 29, 2019;
B. This is confirmed by the fact that the appellant appeared at the case conference on September 6, 2019, as indicated by the Case Conference Order;
C. The appellant did not provide any documents to the respondent Registrar in advance of the hearing, and the Case Conference Order required that she provide any documents she intends to rely on to the Registrar by September 9, 2019;
D. The appellant did not appear at the September 13, 2019 telephone hearing, and did not make any request for an adjournment prior to the hearing, pursuant to Rule 16.1 or 16.2;
E. The Registrar advised that they had no communication with the appellant since the case conference; and,
F. The Tribunal made several attempts, by phone and email, to reach the appellant during the course of the hearing, and these attempts were unsuccessful.
13Therefore, the appellant has abandoned the appeal, and the appeal should be dismissed as abandoned. To reiterate, the appellant is not entitled to any further notice in this proceeding.
The appellant has not satisfied her onus
14Section 7 of the Act also permits the Tribunal to proceed with a hearing where a party, receiving due notice, is absent. Were I not to dismiss the appeal as abandoned, I would proceed with the hearing on its merits. Because the appellant did not attend or submit any documents, the only evidence before me in support of her appeal is her Notice of Appeal. Consequently, I find that the appellant has not satisfied her onus to prove that the impoundment of her car will cause her exceptional hardship.
15Section 10 of O. Reg. 631/98 (the Regulation) under the Highway Traffic Act provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation, the Tribunal may only consider financial or economic loss, loss of employment or employment opportunity, or loss of a training opportunity if the owner of the vehicle can demonstrate that:
There is no alternative to the impounded motor vehicle available;
The loss will be immediate, significant and lasting;
The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and,
The impact of the loss will be on someone other than the suspended driver whose driving resulted in the impoundment, and the loss is not suffered by the suspended driver.
16Inconvenience to any person is not exceptional hardship.
17The threshold question, therefore, is whether or not the appellant has alternatives to the impounded vehicle available to her. Section 10(4) of the Regulation states:
10(4) 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.
18There is no evidence to suggest that the appellant has considered every reasonable option or mitigated any losses she might experience as a result of the impoundment, or that she does not have any alternative available to her. In fact, the appellant’s Notice of Appeal indicates the opposite. She has rented a car in order to be able to carry out her employment responsibilities.
19Therefore, I find that the appellant has not met the threshold question of proving that no reasonable alternative to the impounded vehicle is available, and her appeal cannot succeed.
ORDER
20The appeal is dismissed as abandoned.
LICENCE APPEAL TRIBUNAL
Asad Ali Moten, Member
Released: September 13, 2019