Peggy Agyei Balfour v. Registrar of Motor Vehicles, 2021 CanLII 134318

Date: 2021-12-30

File Number: 13702/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:

Peggy Agyei Balfour

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jacqueline Castel

APPEARANCES:

For the Appellant: Did Not Attend

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference December 29, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on December 29, 2021 to consider the appellant’s appeal of the impoundment of her 2016 Honda CRV (the “vehicle”). The vehicle was impounded because the driver’s licence was under a Criminal Code suspension at the time of the impoundment.

2The appellant is requesting that the Tribunal make a finding that the impoundment be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle on the grounds that (a) the driver’s licence of the driver of the vehicle, at the time it was detained in order to be impounded, was not under suspension; and (b) the impoundment will result in exceptional hardship.

ISSUES:

3The issues to be determined are:

(i) Was the driver’s licence of the driver of the vehicle at the time it was detained, in order to be impounded, under suspension?

(ii) Does the ground of exceptional hardship apply to the appellant?

PRELIMINARY MATTER:

4The appellant did not call into the teleconference hearing at the scheduled time, despite having been notified of the date and time of the hearing. Mr. Kapur, agent for the respondent, submitted that the hearing should proceed in the absence of the appellant because she agreed to the hearing date at the case conference of December 8, 2021, received notice of the date and time of the hearing, and confirmed to the Tribunal and the respondent that she would be attending the hearing in an email dated December 24, 2021.

5After waiting for twenty minutes for the appellant to call-in, as well as attempting to reach her by telephone, the hearing proceeded in the absence of the appellant given that she received notice of the date/time of the hearing and did not contact the Tribunal to request an adjournment.

6At a case conference of December 8, 2021, the parties were ordered to file any documents they would be relying on at the hearing as well as witness statements by December 20, 2021. The appellant did not file any documents or witness statements by this deadline or at anytime prior to the hearing.

CONCLUSION:

7The appellant carries the onus, on a balance of probabilities, to establish the grounds to set aside the impoundment. In her absence, I considered the appellant’s written grounds for appeal and the Registrar’s documents and evidence showing that at the time of the impoundment the driver’s licence was under suspension for a Criminal Code offence. The appellant has failed to satisfy her onus. The ground of exceptional hardship does not apply to the appellant pursuant to section 50.2(4) of the Highway Traffic Act (the “HTA”) because a motor vehicle she owns has been previously impounded.

LAW AND ANALYSIS:

8The owner of a vehicle that has been impounded pursuant to s. 55.1(1) of the HTA, may appeal the impoundment under s. 50.2 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 appellant in this case appealed on two grounds: (i) 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 under suspension; and (ii) that the impoundment will result in exceptional hardship.

Driver’s Licence Not Under Suspension

10Section 50(3)(b) of the HTA provides that an impoundment may be set aside where the driver’s licence of the driver of the vehicle, at the time it was detained in order to be impounded, was not then under suspension.

11The appellant wrote in her Notice of Appeal that the driver, at the time of the impoundment, was her partner, Elder Asamoah, who holds a valid driver’s licence.

12Police Constable (PC) Stella Arcuri, of York Regional Police Service, testified at the hearing that she observed the appellant, who was determined to be intoxicated, driving the vehicle and that the appellant also admitted to her that she had been driving the vehicle earlier in the evening.

13Based on the extended driver record search for Peggy Agyei Baffour filed by the respondent, the appellant’s driver’s licence is under suspension until January 27, 2022.

14Since the appellant did not provide any evidence to rebut PC Arcuri’s testimony that she observed the appellant driving the vehicle, I find that the licence of the driver, at the time of the impoundment, was under suspension.

Exceptional Hardship

15Section 50.2(4) of the HTA states that the ground of exceptional hardship does not apply where there has been a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the appellant.

16This is the second time the appellant’s vehicle has been impounded, under section 55.1 of the HTA in 2021, the first time occurring on September 4, 2021.

17As such, under section 50.2(4), the exceptional hardship ground of appeal is not available to the appellant.

ORDER:

18Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment.