An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1 of that Act
Between:
Kelly Saunders
Appellant
and
Registrar of Motor Vehicles
Respondent
REASONS FOR MOTION DECISION
ADJUDICATOR: Katherine Livingstone, Member
APPEARANCES:
For the Appellant: Self-Represented
For the Respondent: L. Pereira, agent
Heard by teleconference: December 9, 2022
Overview
1On October 31, 2022, the appellant’s vehicle was impounded for 45 days, pursuant to s 55.5(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the Act). This section allows a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ended on December 15, 2022.
2The appellant appeals on the basis the impoundment caused exceptional hardship.
3Additionally, I also considered whether there was evidence a suspended driver was operating the vehicle at the time of the impoundment.
4After considering the totality of the oral and documentary evidence, I ordered the release of the motor vehicle with written reasons to follow. These are those reasons.
Background
5After the appellant filed her notice of appeal, a case conference was held to determine whether the matter would proceed to hearing and if it was, then what the timelines for disclosure would be for both parties. At the conclusion of the case conference, the parties were ordered to exchange “copies of all documents they intend to rely on at the hearing and statements of anticipated witnesses, by November 29, 2022 at 5:00 pm”1. A date for hearing was set for December 6, 2022.
6The hearing commenced before me on December 6, 2022. At the beginning of the hearing, the respondent’s representative, Ms. Pereira, advised a critical document, the Notice to Registrar, that had been forwarded to the appellant as part of the respondent’s disclosure obligation, was in fact the wrong Notice to Registrar and had been forwarded to her in error.
7The Notice to Registrar is a document normally relied on by the respondent in an impoundment hearing. The Notice includes information on the name of the alleged driver and owner of the vehicle, the date and place where the incident leading to the impoundment took place and the nature of the alleged criminal code suspension which led to the impoundment.
8Ms. Pereira sought to file what she said was the correct document. I was concerned that allowing the late filing of this document would negatively impact the procedural fairness of the hearing and asked whether Ms. Pereira wanted to take some time to assess her position before we proceeded further. She indicated she wished to take some time to review her position. Unfortunately, Ms. Pereira’s hearing schedule was full for the rest of the day and the following two days, so the earliest we could reconvene was December 9, 2022. I told Ms. Pereira I would not accept any new documents before the return date for the hearing.
9On the return date Ms. Pereira advised that after considering the matter, she was prepared to proceed with the hearing. She indicated she would not be relying on the Notice to Registrar that had been disclosed to the appellant as it was not relevant to this hearing and since it has nothing to do with the case, “it should not be considered”. She said she believed the case “could be proven by all other evidence” and “a clerical error should not outweigh the position of the Ministry of Transportation” that the vehicle was lawfully impounded. She did not seek to file any further documentation.
Issues
10The issues to be determined are:
a) Was there evidence that a suspended driver had been driving the vehicle during the incident that led to the impoundment?
b) Has the impoundment caused the appellant exceptional hardship?
The Evidence
11Ms. Pereira proceeded with the respondent’s evidence, which consisted solely of documentary evidence; specifically, copies of the relevant legislation, the driving record of a Chase Lawlor, documents indicating the appellant owned two vehicles and a Notice of Impound and Release which appeared to be related to one of the two vehicles owned by the appellant. Ms. Pereira asked for the documents to be filed collectively as an exhibit. This was the only exhibit filed on the hearing.
12The appellant gave evidence and was cross examined by Ms. Pereira. Her evidence was brief and centered on the “undue stress on her life” caused by the impoundment. She said the impounded car was hers and the impoundment is causing a “rife” in her job and her current relationship. During cross examination she said she had been asking friends to assist her while she has been without her car. She had not missed any work due to the impoundment due to her friends’ assistance and there was no evidence that she was not able to attend any necessary medical appointments or obtain groceries or any other necessities. She did not give evidence, either in chief or during cross examination, as to who was driving the car at the time of the impoundment, nor the status of their driver’s licence.
13In response to my question, Ms. Pereira acknowledged there was no evidence before me to confirm who was driving the vehicle on the day it was impounded.
The Law and Analysis
14The owner whose vehicle is impounded can appeal to this Tribunal to have the Registrar release the vehicle, based on any grounds listed in s. 50.2(3) of the HTA. Two of those grounds are relevant to this hearing:
a) That the driving licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not the subject of suspension;
b) That the impoundment will result in exceptional hardship
15The appellant has the onus of establishing, on the balance of probabilities, that any of the grounds have been met.
16While acknowledging the onus on the appeal is on the appellant, I must look at the evidence as a whole. In this unusual fact situation, as acknowledged by the respondent, there is no evidence who the driver was at the time of the impoundment and therefore no evidence that their licence was subject to a suspension. On that basis I am satisfied the appellant has met her onus pursuant to s.50.2 (3) (a) of the HTA.
17Having found that the appellant has met her onus pursuant to s.50.2(3), it is not necessary for me to consider the ground of exceptional hardship.
Order
18For the reasons set out above, the appeal is granted and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
____________________________
Katherine Livingstone, Member
Released: January 05, 2023