LICENCE APPEAL TRIBUNAL
File Number: 12060/MVIA
Appeal under subsection 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:
L.G.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jacqueline Castel
Appearances:
For the Appellant:
For the Respondent: Sonia DeSantis, Agent Nora Challis, Agent
Heard by Teleconference on: May 31, 2019
OVERVIEW
1A teleconference hearing was held on May 31, 2019 to consider the appellant’s appeal of the 45 day impoundment of his 2012 Dodge, RPL (the “vehicle”). The vehicle was impounded on May 4, 2019, pursuant to s. 55.1(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 (the “Act” or the “HTA”), because the licence of the driver of the vehicle was under a life-time Criminal Code suspension.
2The appellant did not call into the teleconference hearing at the scheduled time. At the outset of the hearing, the Tribunal attempted to contact the appellant but was unable to reach him.
3The appellant received written notice of the hearing in the form of an Amended Notice of Hearing and a Case Conference Order. An Amended Notice of Hearing was emailed to the appellant with the hearing date, time and call-in information. Page 2 of the Amended Notice of Hearing states, in bold face print: “If you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding.” The CCO which was emailed to the appellant on May 28, 2019 also included the date, time and call-in information for the hearing, as well as the same warning that was in the Amended Notice of Hearing about failing to attend the hearing.
4At approximately 9:45 a.m., when it became clear that the appellant was not going to call in, Ms. DeSantis, agent for the respondent, requested that the hearing proceed without the appellant. Given that the appellant had received notice of the hearing, I agreed to commence the hearing in the absence of the appellant.
ISSUE
5The issue to be determined is whether the impoundment will result in exceptional hardship?
CONCLUSION
6On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3) (d) of the HTA.
LAW AND ANALYSIS
7Subsection 55.1(1) of the HTA requires a police officer to detain and impound a vehicle where he or she is satisfied that the licence of the driver of the vehicle was under suspension. The impound period is 45 days if there has been no previous impoundment, with respect to any vehicle owned by the registered owner, in the last two years (s. 55.1(3)).
8The owner of a vehicle that has been impounded, pursuant to s. 55.1(1) of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
9There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The onus is on the appellant to show that there is evidence to support, on a balance of probabilities, one or more of the grounds of appeal set out in the Act.
10The appellant, in this case, appealed on the ground of exceptional hardship, based on the information contained in his Notice of Appeal as well as in the CCO.
Exceptional Hardship
11Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.
12The appellant indicated in his appeal documents, that he filed with the Tribunal on April 29, 2019, that he is employed as a heavy machine operator for a paving company and requires his vehicle to get to and from work. He also indicated that he has been using his daughter’s vehicle to get to and from work, since his vehicle was impounded. However, he stated that his daughter will require the vehicle to get to and from university starting May 6, 2019.
13Ms. DeSantis submitted that the appellant has not met the onus of establishing that there are no alternatives to the impounded vehicle and asked the Tribunal to confirm the impoundment.
14I agree with Ms. DeSantis that the appellant has not provided enough evidence for me to find, on a balance of probabilities, that there are no alternatives to the impounded vehicle.
15For the above reason, I find that the appellant did not satisfy the test that there was no alternative to the impounded vehicle. Accordingly, I do not need to consider the other provisions of s. 10 of the regulation.
ORDER
16Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
_________________________
Jacqueline Castel, Member
Released: June 3, 2019