R.B. v. Registrar of Motor Vehicles, 2019 CanLII 58148

Licence Appeal Tribunal

Date: 2019-06-04 File Number: 12043/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:

R.B. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: R.B., Self-represented For the Respondent: Sonia De Santis, Agent

Heard by Teleconference on: May 21, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on May 22, 2019 to consider the appellant’s appeal of the impoundment of her 2013 Honda Accord (the “vehicle”), under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”), to the Licence Appeal Tribunal (the “Tribunal”).

2The appellant allowed her daughter (“S.B.”), a licensed driver, to use the vehicle. S.B., in turn, allowed a friend (“D.C.”) to drive the vehicle. Unbeknownst to the appellant and S.B., D.C. is a suspended driver.

3D.C. was driving the vehicle on April 12, 2019 when OPP Sgt. J.S. directed that the vehicle be impounded for 45 days, pursuant to section 55.1(1) of the Act.

4On May 13, 2019, Sgt. J.S. wrote to Batista Towing, the company where the vehicle was impounded, informing: “It is my decision to have this vehicle released prior to the conclusion of 45 days as per discussions with the MTO.” The letter also stated that the registered owner of the vehicle is responsible for paying the impoundment fees. The appellant paid the fees and the vehicle was released to her 33 days after it was impounded.

5The appellant wishes to appeal the impoundment, for the purpose of recovering the impoundment fees, on the ground of exceptional hardship.

6The respondent’s position is that the vehicle was not properly impounded under section 55.1 of the HTA and, therefore, the Tribunal does not have jurisdiction to hear the appeal under section 50.2 of the Act.

ISSUES

7The issues to be determined are:

(i) Does the Tribunal have jurisdiction to decide this appeal?

(ii) If the answer to (i) above is yes, did the impoundment result in exceptional hardship?

CONCLUSION

8On the evidence before me, I find that the Tribunal has jurisdiction to decide the appeal, but that the impoundment did not result in exceptional hardship for the purpose of section 50.2(3)(d) of the Act. As such, the appeal is denied.

LAW

9Under section 55.1(1) of the HTA, a police officer is required to detain and impound a vehicle where he or she is satisfied that it is being driven on a highway by a person in one of these three circumstances:

1. While his or her driver’s licence is under suspension under section 41, 42 or 43, even if it is under suspension at the same time for any other reason.

2. In contravention of a condition, imposed for a prescribed reason on his or her driver’s licence under a conduct review program under section 57 that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.

3. While his or her driver’s licence is under suspension for a prescribed reason under a conduct review program under section 57, even if it is under suspension at the same time for any other reason.

10The 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)).

11Section 50.2(3) of the Act gives the owner of the vehicle the right to appeal the impoundment to the Tribunal on only four specific grounds:

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;

(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.

12On the appeal, pursuant to section 50.2(5), the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. Where the Tribunal orders the Registrar to release the motor vehicle, the Registrar shall pay the costs of the impoundment. Pursuant to section 50.2(8) of the Act, the decision of the Tribunal is final and binding.

EVIDENCE AND SUBMISSIONS

13The appellant’s daughter, S.B., testified that she was a passenger in the vehicle when OPP Sgt. J.S. had the vehicle pulled over for an improper lane change and then determined that the driver’s licence was under suspension. At this time, according to S.B., Sgt. J.S. told her that the vehicle was being impounded under section 55.1 of the HTA. He also gave her an OPP form entitled, “Notice of Motor Vehicle Impoundment/Release”, which stated that the vehicle was being impounded for 45 days under section 55.1 of the Act. In addition, according to S.B., Sgt. J.S. told her she would have the right to appeal the impoundment.

14Ms. De Santis, the agent for the respondent, stated that she contacted Sgt. J.S. for clarification, after the appellant filed her appeal documents, because the impoundment had not been entered into the Ministry of Transportation’s (“MTO”) database. She attempted to reach Sgt. J.S. several times and eventually managed to speak to him on May 13, 2019, after participating in a case conference, by telephone, with the appellant on the same day.

15According to Ms. De Santis, Sgt. J.S. told her that when he looked into this matter further, he determined that there was a discrepancy between the information on the MTO database and the Canadian Police Information Centre (CPIC) data base. As such, he did not believe that the vehicle should have been impounded under s. 55.1 of the HTA. Ms. De Santis stated that she did not know the details or the discrepancy and could not elaborate as to why Sgt. J.S. believed a section 55.1 impoundment was no longer proper. She also did not know under what section of the Act the driver’s licence was suspended.

16Ms. De Santis stated that Sgt. J.S. wrote to the company where the vehicle was impounded, by letter dated May 13, 2019, informing that the vehicle could be released prior to 45 days elapsing, but that the registered owner of the vehicle would be responsible for all costs incurred. He did not provide reasons for the “early release” of the vehicle in his letter.

17Ms. De Santis submitted that the Tribunal does not have jurisdiction to decide the appeal. At the hearing, she based her submission on the fact that the police officer determined he did not have the authority to impound the vehicle under s. 55.1 of the Act, ordered the early release of the vehicle, and never entered the impoundment on the MTO database.

18In light of the jurisdiction issue which was raised at the hearing but which would not have been known to the appellant when she filed her appeal (April 25, 2019) or participated in a case conference (May 13, 2019), the Tribunal invited written submissions from the parties on the jurisdiction of the Tribunal to decide the appeal. In addition, the Tribunal asked if the respondent could identify, in its written submissions, under what section of the HTA the driver’s licence was suspended.

19With her written submissions, Ms. De Santis included the driver’s Extended Driver Record Search for Criminal Convictions which shows that his licence was suspended under section 41(1)(b.1) and 41(f) of the HTA, when he was convicted for impaired driving (under section 253 of the Criminal Code, at the time), and would remain suspended until he completed a conduct review program under section 57 of the Act and Regulation 287/07. The driver had did not satisfy the Registrar that he has completed the conduct review program. As such, his licence remains suspended for failing to do so pursuant to section 41(4.1) of the Act.

20In her written submissions, Ms. De Santis also clarified her position on jurisdiction. She indicated that she would be basing her submission, that the Tribunal does not have jurisdiction to hear the appeal, on the fact that Sgt. J.S. did not comply with section 55.1(5)(c) of the Act, which states:

Every officer who detains a motor vehicle under this section shall, as soon as practicable,

(c) forward a copy of the notice to the Registrar.

21According to Ms. De Santis, when a police officer fails to give notice to the Registrar under section 55.1(5)(c), “there is no actual impoundment under section 55.1 of the Act.” She submitted that if there is no section 55.1 impoundment, there can be no right to appeal, and the Tribunal, therefore, has no jurisdiction to hear this appeal. She suggested that any dispute over who pays the impoundment fees is a civil matter between the appellant and the OPP.

22The appellant did not file written submissions by the deadline provided.

ANALYSIS

Jurisdiction

23Ms. De Santis’ submitted at the hearing, that the Tribunal does not have jurisdiction to hear the appeal under section 50.2(3), because the police officer believed he lacked the authority to impound the vehicle under section 55.1 and permitted its early release. This position is not consistent with the purpose and intent of section 50.2(3)(b) of the Act.

24Section 50.2(3)(b) makes it a ground for appealing an impoundment where “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”. Therefore, every time the Tribunal grants an appeal under section 50.2(3)(b), the impoundment would be ordered without authority since a suspension is a requirement of section 55.1. If the Tribunal were to lose jurisdiction anytime the impoundment is ordered without authority, section 50.2(3)(b) would have no purpose and could never be used successfully as a ground of appeal.

25In this case, the appellant would not have recourse to section 50.2(3)(b) because, as Ms. De Santis acknowledged after reviewing the driver’s Extended Driver Record Search for Criminal Convictions, the police officer had the authority to impound the vehicle under section 55.1. The driver’s licence was suspended under section 41(4.1) of the Act for failure to satisfy the Registrar that he completed a conduct review program. As such, the impoundment was based on paragraph 1 of section 55.1(1), which is outlined in paragraph 9 of this decision.

26Sgt. J.S. did not give evidence at the hearing. As such, it is unclear why he believed the impoundment was improper and ordered the early release of the vehicle. However, based on the evidence, Sgt. J.S. did have the authority to impound the vehicle under section 55.1.

27Ms. De Santis indicated in her written submissions, after accessing the suspended driver’s record, that she would be basing her position on jurisdiction on Sgt. J.S.’s failure to forward a copy of the notice of impoundment to the Registrar, as is required under section 55.1(5)(c) of the Act.

28I do not dispute that Sgt. J.S. failed to comply with section 55.1(5)(c). However, the Act does not make compliance with section 55.1(5)(c) a requirement for an impoundment under section 55.1(2) or for the Tribunal to have jurisdiction to hear an appeal of such an impoundment.

29Section 55.1(2) states as follows:

Once the drawn vehicle and load, if any, have been removed as may be required by subsection (10), (11), (12) or (13), the detained vehicle shall, at the cost and risk of the owner,

(a) be removed to an impound facility as directed by a police officer or officer appointed for carrying out the provisions of this Act; and

(b) be impounded from the time it was detained for the period described in subsection (3) or until ordered to be released by the Registrar under subsection (14) or under section 50.2.

As such, section 55.1(2) requires that a vehicle detained under section 55.1(1) must be impounded; however, it makes no mention of section 55.1(5).

30Sgt. J.S. had the legal authority to impound the vehicle under section 55.1, he represented to the appellant’s daughter that he was impounding the vehicle under section 55.1 and gave her a document which indicated that the vehicle was being impounded under section 55.1. His subsequent failure to comply with section 55.1(5), and decision to allow the early release of the vehicle, do not negate his prior actions and representations to the appellant’s daughter.

31For the above reasons, I find that Sgt. J.S. impounded the vehicle under section 55.1, and that the Tribunal has jurisdiction to hear that appeal under s. 50.2 of the Act.

Exceptional Hardship

32Given that I have determined that the Tribunal has jurisdiction, I now turn to the substance of the appeal: whether the appellant has proven, on a balance of probabilities, that the impoundment resulted in exceptional hardship for the purpose of section 50.2(3)(d).

33Section 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. The onus is on the appellant to introduce evidence to establish, on a balance of probabilities, that there is no alternative to the impounded vehicle. In this case, I find that the appellant has not met this first requirement.

34The appellant, the owner of the vehicle, testified that she has alternatives to the vehicle. In fact, she does not normally use the vehicle that was impounded. Although the vehicle is registered in her name, it is her daughter who uses the vehicle. The appellant emphasized that paying the impoundment fees, to secure the release of the vehicle, caused her significant financial strain. She also asked that I consider the impact of the impoundment on her daughter, who could not afford to rent a vehicle for the entire period of impoundment, and ultimately lost her job because she did not have a vehicle.

35I can only consider loss of employment, on the part of the appellant’s daughter, if the appellant has established that there is no alternative to the impounded vehicle. In this case, the appellant did not introduce sufficient evidence to demonstrate, on a balance of probabilities, that every reasonable option was considered and inquired into, that could eliminate or adequately mitigate any threat or loss to her daughter. Such options would include, but not be limited to, lending her daughter the money to rent a vehicle (since her daughter could not afford the rental fees for the entire impound period), borrowing a vehicle from a family member or friend, using public transportation, or otherwise making arrangements to do without a vehicle during the impound period.

36Further, even if I were to have found that no alternative to the impounded vehicle existed, the appellant would have had to demonstrate that the loss of employment, on the part of her daughter, will be “immediate, significant and lasting”, requirements of section 10(3) of O.Reg. 631/93. Although the appellant did not introduce evidence specifically directed at addressing these requirements, from the totality of evidence, I can conclude that the loss of her daughter’s job was “immediate” and “significant”. However, there is no evidence before me from which I can conclude, on a balance of probabilities that the loss of employment will be “lasting”.

37For the above reason, I find that the impoundment of the appellant’s vehicle did not result in exceptional hardship for the purpose of section 50.2(3)(d) of the Act.

ORDER

38Accordingly, pursuant to subsection 50.2(5) of the HTA, the appeal is denied.