Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-06-11

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended

Between:

Peter Minakis

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: Self represented

For the Respondent: Sonia De Santis, Agent

Place and date(s) of hearing:

By Teleconference

April 6, 2021

REASONS FOR DECISION

A. Overview

1The appellant appeals the 90-day impoundment of his 2009 Hyundai Accent (the “vehicle”). The vehicle was impounded on February 23, 2021 and is due to be released from impoundment on May 24, 2021. The appellant was driving the vehicle at the time it was impounded and appeals on the ground that the impoundment will cause exceptional hardship.

2The Registrar of Motor Vehicles (the “Registrar”) takes the position that because a vehicle belonging to the appellant had been impounded in the past two years, the appellant is not permitted to appeal on the grounds of exceptional hardship.

B. ISSUES

3The issues to be determined in this case are as follows:

a. Was there a previous impoundment of a motor vehicle owned by the appellant under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”)?

b. Will the impoundment of the vehicle result in exceptional hardship to the appellant within the meaning of s. 50.2(3)(d) of the Act?

C. RESULT

4I find that a vehicle owned by the appellant was impounded in June 2019, which precludes the appellant from appealing on the grounds of exceptional hardship. As this was the only ground of appeal asserted by the appellant, his appeal must fail. Accordingly, I confirm the impoundment.

D. LAW

5Under the Act, where a police officer is satisfied that a person is driving while his or her driver's licence is suspended for certain offences, the officer is required to detain and impound the vehicle. Section 55.1 of the Act sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the past two years and 90 days if there has been one previous impoundment within the previous two years.

6Subsection 50.2(3) of the Act lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. One of these grounds is that the impoundment will result in exceptional hardship. However, s. 50.2(4) of Act provides that the exceptional hardship ground is not available if there has been a previous impoundment under s. 55.1 of the Act.

7The appellant bears the burden of proving one of the grounds of appeal set out in s. 50.2(3) of the Act.

8Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. EVIDENCE AND ANALYSIS

Issue 1: Was a vehicle owned by the appellant previously impounded?

9The appellant’s sole ground of appeal was that the impoundment of the vehicle is causing exceptional hardship. The Registrar took the position that the appellant is not entitled to rely upon the exceptional hardship ground because a vehicle owned by the appellant had been impounded within the past two years. As described above, s. 50.2(4) of the Act provides that an appellant may not rely upon the exceptional hardship ground in such circumstances.

10The Registrar produced a document entitled Notice to Registrar - Notice of Suspension and Impoundment dated June 18, 2019 indicating that a vehicle owned by the appellant had been impounded for a period of 45 days (the “Previous Impoundment”). This is the same vehicle that is the subject of the impoundment under appeal in this proceeding.

11The appellant acknowledged the Previous Impoundment and this fact is not in dispute. However, the appellant argued that the Previous Impoundment was improper owing to the fact that the related charge of driving while suspended, that is, the charge underpinning the Previous Impoundment, was withdrawn. A brief review of the timeline is helpful in understanding this argument.

12The appellant’s driver’s licence was suspended on August 30, 2018. The appellant testified that he applied for and obtained a driver’s licence dated February 6, 2019, believing that he was entitled to reinstatement of his driver’s licence at that time. The appellant produced a photograph of his driver’s licence dated February 6, 2019, which confirms his understanding and which appears genuine. When he was stopped on June 18, 2019, the officer informed him that his driver’s licence was showing as suspended in the Ministry of Transportation’s system. The agent for the Registrar produced a search of the Ministry of Transportation’s records which shows the appellant’s driver’s licence as being under suspension as that date.

13The appellant further testified that the charges against him of driving while suspended were withdrawn, owing to the fact that he believed himself to be driving with a valid driver’s licence. The appellant produced a copy of the information that confirms that this charge was withdrawn. It appears that the charge was not withdrawn until after the expiry of the Previous Impoundment.

14Section 50.2(4) is very brief. It says only that “Clause (3)(d) [exceptional hardship] does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.” For the reasons that follow, I am of the view that s. 50.2(4) precludes the Tribunal from considering the exceptional hardship ground of appeal even in circumstances where, as here, the driver’s concurrent quasi-criminal or criminal charge for driving while suspended is subsequently withdrawn.

15First, the standard of proof in these appeals is a balance of probabilities. That means that even where a person is found not guilty, or has their charge stayed or withdrawn, it is still open to the Tribunal to find that the vehicle was indeed being operated improperly by a suspended driver. This is because criminal and quasi-criminal charges must be proved on the stringent “beyond a reasonable doubt” standard. A failure by the Crown to prove an offence beyond a reasonable doubt does not automatically result in a conclusion that the same conduct cannot be established on a balance of probabilities. Of course, the reason why a charge is withdrawn may be relevant to an appeal under s. 50.2.

16Second, it appears that the legislature intended that a person in circumstances such as the appellant would not be permitted to raise the exceptional hardship ground of appeal.

17Section 50.2(4) clearly prohibits a person from relying on exceptional hardship if their motor vehicle was subject to a “previous impoundment”. Considering this provision in isolation, one might be tempted to read in the words such as “if the vehicle was not released under 50.2(5)” by the Tribunal following a hearing, such that persons who successfully appeal an impoundment would still be permitted to argue exceptional hardship if their vehicle was subsequently impounded again. However, a consideration of the entire statutory scheme suggests an opposite legislative intent.

18The legislature has turned its mind to granting a similar exception for certain prescribed vehicles released early by the Registrar, but has specifically not done so with respect to vehicles in circumstances such as this case.

19Under the scheme, a vehicle that is impounded under s. 55.1 may be released under several different provisions. Section 50.2(5) allows the Tribunal to order that the vehicle be released following a hearing if the appellant establishes a ground of appeal. If the owner does not appeal, or is unsuccessful in establishing an appeal ground, the Registrar is required to release the vehicle when the impound period expires: s. 55.1(17).

20Section 55.1(14) allows the Registrar to release a motor vehicle before the prescribed impound period expires in certain situations. Regulation 631/98 “Long-Term Vehicle Impoundment Under Section 55.1 of the Act” (the “Regulation”) allows the Registrar to release an impounded motor vehicle early to car rental agencies in limited circumstances. Notably, s. 55.1(15) provides that a car released early under (14) shall not be considered a previous impoundment within the meaning of s. 50.2(4):

Consequence of order to release

Where an order to release is made under subsection (14), the impoundment shall not be considered a previous impoundment for the purposes of subsection (3) or subsection 50.2 (4).

21These provisions make it clear that the legislature turned its mind to exemptions for what would be considered a “previous impoundment” under s. 50.2(4). They also suggest that the legislature intended that, where a vehicle is released early by the Registrar to a car rental agency that meets the criteria established under the Regulation, the exceptional hardship ground would be available to the rental agency should its vehicle be subsequently impounded. This is because (15) deems the vehicle to not have been previously impounded within the meaning of s. 50.2(4).

22The legislature could easily have included a reference to s. 50.2(5) (Tribunal releasing the vehicle following a hearing) in (15) if it wanted to make it clear that owners who successfully appeal an impoundment are not precluded from raising exceptional hardship if their vehicle is subsequently impounded. It did not, and there is no similar provision elsewhere in the scheme. In light of the express exemption from s. 50.2(4) for vehicles released early by the Registrar under s. 55.1(14)-(15), I conclude that the omission of a similar deeming provision for vehicles released by the Tribunal following a hearing was a deliberate choice by the legislature.

23Thus, it is my view that even where the vehicle has been released by the Tribunal on the appeal ground that the driver’s licence of the person driving the impounded vehicle was not then under suspension, s. 50.2(4) would still operate to preclude the owner from subsequently appealing on the exceptional hardship ground. This is because the vehicle meets the criteria in s. 50.2(4) – it is a vehicle that has been impounded and is not subject to the deeming provision in s. 55.1(15) or other similar section. Similarly, s. 50.2(4) applies to a situation where, as here, an owner’s vehicle has been impounded but the criminal or quasi-criminal charge of driving while suspended has been withdrawn.

24Some might view precluding an owner whose vehicle is released by the Tribunal following a hearing from raising exceptional hardship in a subsequent appeal as unfair. On the other hand, it may be that the legislature intended the exceptional hardship ground of appeal to be available only to those vehicle owners who were unaware of the statutory impound scheme and its significant financial and practical consequences. Ultimately, determining why the legislature chose to consider vehicles released by the Tribunal following a hearing as being “previously impounded” is unnecessary given the clear legislative intent discussed above.

25Having determined that the appellant’s vehicle had been previously impounded in June 2019, I am unable to consider the exceptional hardship ground of appeal, which is the appellant’s sole ground of appeal. In consequence, I am unable to order the return of the vehicle to the appellant under s. 50.2(3)(b) of the Act.

F. CONCLUSION

26For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.