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 for driving while under suspension or in contravention of a condition
Between:
Anas Bendriouch
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
K. Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
L. Pereira, agent for the Registrar
Heard by teleconference:
September 26 and 28, 2022
Overview
1On August 29, 2022, the appellant’s vehicle was impounded for 90 days pursuant to s. 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). This section allows a police officer to detain and then impound a motor vehicle that is being driven by a person whose licence has been suspended for certain offences under the Criminal Code, or where there is a condition on the driver’s licence that he may only drive vehicles equipped with an ignition interlock device and the vehicle is not so equipped.
2The owner whose vehicle is impounded under s. 55.1 has limited grounds to appeal the impoundment. These grounds are set out in section 50.2(3) of the HTA.
3The appellant, who was the driver at the time of the impoundment, is appealing the impoundment on the ground that his licence was not under suspension, or he did not have an ignition interlock condition on his licence, and on the ground of exceptional hardship (s. 50.2(3)(b) & (d)).
Issue
4Should the Registrar be ordered to release the appellant’s vehicle on either of the grounds raised by the appellant?
Result
5The impoundment of the appellant’s vehicle is confirmed.
The Law
6Under s.55.1 of the HTA, a police officer “shall” impound a motor vehicle if the officer is satisfied that it was being driven by a person in one of three circumstances specified in that section:
i. The licence of the driver is under suspension under s. 41, 42, or 43 of the HTA.
ii. The driver is driving in contravention of a condition imposed on his licence that prohibits the driver from driving a motor vehicle not equipped with an ignition interlock device.
iii. The licence of the driver is under suspension for a prescribed reason under a conduct review program under s. 57 of the HTA.
7The motor vehicle will be impounded for a period of 45 days if there had been no previous impoundment or for 90 days if there had been one previous impoundment, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded. (s. 55.1(3)).
8Section 50.2 (1) of the HTA provides that the owner of an impounded vehicle may appeal an impoundment to this Tribunal. On appeal, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle (HTA s. 50.2 (5) ).
9Pursuant to s. 50.2 (3) of the HTA, there are only four grounds on which an owner may appeal an impoundment. The appellant is relying on s. 50.2(3) b. and d.:
b) That the driver’s licence of the drive of the motor vehicle at the time it was detained was not then under suspension or subject to a condition requiring an ignition interlock device to be installed in the motor vehicle.
d) That the impoundment will result in exceptional hardship.
10With respect to the second ground of appeal – exceptional hardship - Regulation 631/98 of the HTA (“the Regulation”) sets out the factors the Tribunal shall consider and other factors the Tribunal shall not consider, in determining whether exceptional hardship will result from an impoundment.
11Under s.10 (1) of the Regulation, the Tribunal shall consider whether an alternative to the impounded vehicle is available to the owner and if no alternative is available then the Tribunal can consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle.
12To show that no alternative vehicle is available, s.10(4) of the Regulation requires the owner to demonstrate that every reasonable option has been considered including using another vehicle and making arrangements to do without a vehicle. If the Tribunal is satisfied that there is an alternative to the impounded vehicle, the ground of exceptional hardship fails, and the Tribunal need not inquire further about threats to the health and safety of the persons who ordinarily rely on the vehicle.
13Additionally, of significance to this appeal, s. 50.2 (4) of the HTA states that the ground of exceptional hardship does not apply if there was a previous impoundment under s. 55.1, with respect to any motor vehicle then owned by the same owner.
Evidence and Analysis of the Appellant’s Grounds of Appeal
a) Was the appellant’s licence under suspension and/or under a condition that the vehicle be equipped with an ignition interlock device?
14The respondent presented evidence the appellant was stopped by police on August 28, 2022 while operating a motor vehicle owned by him. This fact was not disputed by the appellant. Additionally, the appellant did not dispute there was no ignition interlock device in the vehicle when he was stopped.
15The respondent introduced a certified driving record, which the appellant did not initially dispute. The record disclosed the appellant’s licence was suspended in 2018 for a period of three years resulting from a conviction for impaired driving.
16When the suspension ended on January 7, 2021, there was a condition on the appellant’s licence requiring the appellant to have an ignition interlock on any vehicle he was operating. The record showed that, although the appellant was eligible to have the condition removed, this condition was still in place at the time the appellant was stopped on August 28, 2022, as he had not taken the steps necessary for the removal of the condition. These steps included having a substance use assessment form completed by a doctor.
17The driving record further revealed a 90-day ADLS suspension of the appellant’ s licence was imposed on May 3, 2022. That suspension ended on August 1, 2022.
18The appellant testified and, although, when the driving record was initially introduced, he said the record “looked good” to him, in his evidence, while admitting the conviction for impaired driving, he denied his licence had been suspended for three years. Rather he said it was for a period of a year. He was, however, inconsistent in his accounting of when the suspension started and when it ended.
19The main thrust of the appellant’s testimony was with respect to the fact that at the time of the impoundment his licence was not under suspension. Having reviewed the material, I am satisfied that the appellant’s licence was not suspended on August 28, 2022. However, that is not the end of the issue. Section 55.1 of the HTA provides for the impoundment of a vehicle when the person driving has a condition on his licence prohibiting him from driving a motor vehicle not equipped with an ignition interlock device.
20The appellant acknowledged there was a condition placed on his licence in January 2021, requiring him to have an ignition interlock device on any vehicle he was driving, however, he testified he thought it was only in place for a year and believed it expired in January 2022. He also stated he did not know there was a process that had to be undertaken after the interlock condition went into place before the condition could be removed from his licence.
21His evidence in this regard was again inconsistent. He testified when he was stopped on May 3, 2022, he was charged with impaired driving and driving while prohibited. He said the officer told him at that time that the driving prohibited charge was with respect to the interlock condition. Yet, he said he did nothing until this present impoundment to address the outstanding condition and how to remove it, because he said he thought the officer was mistaken.
22He also said his car was impounded in 2021 because of the interlock condition. Again, there was no evidence of any steps he took to understand when and how the interlock condition could be removed from his licence.
23Generally, I found the appellant’s evidence with respect to the interlock condition to be unsatisfactory. His attitude was quite dismissive of the existence of the condition, saying he “was not in frequent contact with the Ministry” and that this was simply a case of “miscommunication”. He did not satisfy me that the condition was not in place at the time of the present impoundment.
24Rather his basic position was his vehicle should be released because had he known about his obligations with respect to the removal of the condition, he would have taken the necessary action to remove the condition. Ignorance of his obligations in this regard is not a ground of appeal.
25In summary, it is clear from the evidence that, at the time of the impoundment of the appellant’s vehicle on August 28, 2022, there was a condition on the appellant’s licence that he not operate a motor vehicle unless it was equipped with an ignition interlock device. He was driving in contravention of the condition. Accordingly, I find the appellant has not met his onus of this ground.
b) Will the impoundment result in exceptional hardship?
26The Registrar’s agent submitted that, pursuant to s.50.2 (4), the ground of exceptional hardship was not available to the appellant as there had been a previous impoundment of a motor vehicle owned by the appellant. The Registrar did not produce any documentary evidence to support their position other than the Notice of Impoundment and Release which indicated the impoundment was for a period of 90 days.
27However, the appellant both in his Notice of Appeal and in his evidence referred to an impoundment of one of his vehicles in 2021 relating to the absence of an interlock device.
28It may very well be that s. 50.2 (4) is applicable to the facts before me. However, in the absence of clear documentary evidence and /or oral evidence offering proof of the time and circumstances surrounding the impoundment in 2021, I am not prepared to make that finding.
29However, I do find the impoundment has not resulted in exceptional hardship.
30Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
31Section 10 (4) then sets out what an appellant must show to meet this initial prong of the test:
10 (4) In order to show that no alternative to the impounded motor vehicle is available… 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.
32If this initial step of the test for exceptional hardship is not met then this ground of appeal fails.
33The appellant lives with his parents, both of whom are licenced drivers. The appellant works from home, only needing to attend the office one day each month. The appellant and his father, who also testified, both confirmed that the parents have provided transportation to the appellant during the time of the impoundment. It is clear an alternative mode of transportation is available to him.
34The appellant based his argument for exceptional hardship on the fact the cost of the impoundment is a cost that he cannot bear at the present time, given his financial circumstances, including paying his parents back for the last impoundment in May 2022. While the present impoundment may be causing the appellant some financial discomfort, s. 10(2) of the Regulation prohibits me from considering inconvenience or financial loss when determining whether the test for exceptional hardship has been met.
35I find the appellant has not met his onus and reject exceptional hardship as a ground of appeal.
Order
36After reviewing the material filed together with the evidence at the hearing and submissions made, I find the appellant had failed, on a balance of probabilities, to meet his onus on both grounds. The appeal is dismissed, and the impoundment of the vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: September 30, 2022