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Order to impound - Section 55.1
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PostPosted: Thu Jan 24, 2008 6:38 am 
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Order to impound - 55.1

(1) In this section,

“operator” means,

(a) the person directly or indirectly responsible for the operation of a commercial motor vehicle, including the conduct of the driver of, and the carriage of goods or passengers, if any, in, the commercial motor vehicle or combination of vehicles, and

(b) in the absence of evidence to the contrary, where no CVOR certificate, as defined in subsection 16 (1), or lease applicable to a commercial motor vehicle, is produced, the holder of the plate portion of the permit for the commercial motor vehicle; (“utilisateur”)

“owner” means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and a plate portion and different persons are named on each portion, means,

(a) in subsections (5), (8) and (14), the person whose name appears on the vehicle portion, and

(b) in subsections (3), (5), (6), (8), (10), (11), (12), (13), (14), (16), (18.1) and (21), the person whose name appears on the plate portion. (“propriétaire”) 1997, c. 12, s. 8; 2000, c. 26, Sched. O, s. 5 (1); 2002, c. 18, Sched. P, s. 18.

Driving while under suspension, Registrar notified

(2) Where a police officer or officer appointed for carrying out the provisions of this Act is satisfied that a person was driving a motor vehicle on a highway 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, the officer shall,

(a) notify the Registrar of the fact or cause the Registrar to be notified; and

(b) detain the motor vehicle that was being driven by the person whose driver’s licence is under suspension until the Registrar issues an order under subsection (3). 1997, c. 12, s. 8; 2000, c. 26, Sched. O, s. 5 (2).

Order to impound or release

(3) Upon notification under subsection (2), the Registrar may, without a hearing, issue an order to release the motor vehicle or issue an order to impound the motor vehicle that was being driven by the driver whose driver’s licence is under suspension, as follows:

1. For 45 days, if an order to impound under this section has not previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

2. For 90 days, if one order to impound under this section has previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

3. For 180 days, if more than one order to impound under this section has previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded. 1997, c. 12, s. 8.

Intent of order to impound

(4) The order to impound issued under this section is intended to promote compliance with this Act and to thereby safeguard the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 1997, c. 12, s. 8.

Notification to police

(5) The Registrar shall notify a police officer or officer appointed for carrying out the provisions of this Act of an order made under subsection (3) and shall send notice of the order to the owner of the motor vehicle at the most recent address for the owner appearing in the records of the Ministry. 1997, c. 12, s. 8.

Release of vehicle

(6) Upon notification of the Registrar’s order to release the motor vehicle, a police officer or officer appointed for carrying out the provisions of this Act shall forthwith release the motor vehicle to its owner. 1997, c. 12, s. 8.

Service of order to impound

(7) Upon notification of the Registrar’s order to impound the motor vehicle, a police officer or officer appointed for carrying out the provisions of this Act shall serve the order or notice of it on the driver. 1997, c. 12, s. 8.

Service on driver is deemed service on owner and operator

(8) Service of the order, or notice of it, on the driver of the motor vehicle shall be deemed to be service on and sufficient notice to the owner of the vehicle and the operator of the vehicle, if there is an operator. 1997, c. 12, s. 8.

Surrender of documents, information re trip and goods carried

(9) If the motor vehicle that is the subject of the order to impound contains goods, the police officer or officer appointed for carrying out the provisions of this Act may require the driver and any other person present who is in charge of the motor vehicle to surrender all documents in his or her possession or in the vehicle that relate to the operation of the vehicle or to the carriage of the goods and to furnish all information within that person’s knowledge relating to the details of the current trip and the ownership of the goods. 1997, c. 12, s. 8.

Operator, owner to remove load

(10) Upon being served, or being deemed to have been served, with the order to impound or notice of it, the operator of the motor vehicle, or if there is no operator, the owner, shall forthwith remove any vehicle drawn by the motor vehicle and any load from the motor vehicle. 1997, c. 12, s. 8.

Application of Dangerous Goods Transportation Act

(11) If the goods are dangerous goods, within the meaning of the Dangerous Goods Transportation Act, the operator, or if there is no operator, the owner, shall remove them in accordance with that Act. 1997, c. 12, s. 8.

Officer may remove load, trailer at operator’s cost, risk

(12) If, in the opinion of a police officer or officer appointed for carrying out the provisions of this Act, the operator or owner fails to remove a drawn vehicle or load as required by subsection (10) within a reasonable time after being served or being deemed to have been served with the order to impound, the officer may cause the drawn vehicle or load to be removed and stored or disposed of at the cost and risk of the operator, or if there is no operator, the owner. 1997, c. 12, s. 8.

Same

(13) If a police officer or officer appointed for carrying out the provisions of this Act is of the opinion that the operator or owner has not made appropriate arrangements for the removal of a drawn vehicle or load, having regard to the nature of the goods, including the fact that they are or appear to be dangerous goods, within the meaning of the Dangerous Goods Transportation Act, or are perishable, the officer may cause the drawn vehicle or load to be removed, stored or otherwise disposed of at the cost and risk of the operator, or if there is no operator, the owner. 1997, c. 12, s. 8.

Vehicle impounded

(14) Upon service or deemed service of the order to impound or notice of it being effected, or, if the motor vehicle that is subject to the order was drawing a vehicle or had a load, once the drawn vehicle and load have been removed, the motor vehicle shall, at the cost of and risk to 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 for the period set out in the order to impound or until ordered to be released by the Registrar under section 50.2. 1997, c. 12, s. 8.

Release of vehicle before end of impound period

(14.1) Despite any order to impound issued under this section, the Registrar may, on application by a person belonging to a class of persons prescribed by regulation, release an impounded motor vehicle of a prescribed class prior to the end of the impound period specified in the order on such conditions as he or she considers just. 2000, c. 26, Sched. O, s. 5 (3).

Consequence of order to release

(14.2) Where an order to release is made under subsection (14.1), the order to impound shall not be considered a previously made order to impound for the purposes of subsection (3) or subsection 50.2 (4). 2000, c. 26, Sched. O, s. 5 (3).

Personal property in vehicle available to owner

(15) Any personal property that is left in the impounded motor vehicle and that is not attached to or used in connection with its operation shall, upon request and proof of ownership, be made available, at reasonable times, to the owner of the property. 1997, c. 12, s. 8.

Vehicle released from impound facility

(16) Upon the expiry of the period of impoundment, the Registrar shall order that the motor vehicle be released to its owner from the impound facility. 1997, c. 12, s. 8.

Release to holder of vehicle portion

(16.1) Despite subsection (16), the holder of the vehicle portion of a certificate of registration may apply to the Registrar for the motor vehicle to be released to that holder upon the expiry of the period of impoundment, rather than to the holder of the plate portion, and the Registrar may order the motor vehicle released to the applicant on such conditions as he or she considers appropriate. 2000, c. 26, Sched. O, s. 5 (4).

Rescission of previously made order

(16.2) Where the Registrar decides to make an order under subsection (16.1), he or she may rescind any order previously made with respect to the motor vehicle under subsection (16). 2000, c. 26, Sched. O, s. 5 (4).

Obligations of holder of vehicle portion

(16.3) An order under subsection (16.1) has the effect of making the applicant liable for meeting the owner’s obligations under subsection (18.1). 2000, c. 26, Sched. O, s. 5 (4).

Costs to be paid before release

(17) Despite being served with an order under subsection (14.1), (16) or (16.1), the person who operates the impound facility is not required to release the motor vehicle to the person named in the order until the removal and impound costs related to the order to impound have been paid. 2000, c. 26, Sched. O, s. 5 (5).

Lien on vehicle for removal, impound costs

(18) The costs incurred by the person who operates the impound facility in respect of an order to impound under this section are a lien on the motor vehicle, which may be enforced in the manner provided under Part III of the Repair and Storage Liens Act. 1997, c. 12, s. 8.

Impound costs

(18.1) The costs incurred by the person who operates the impound facility in respect of an order to impound under this section are a debt due by the owner and the driver of the motor vehicle at the time the order was made to the person, for which the owner and the driver are jointly and severally liable, and the debt may be recovered in any court of competent jurisdiction. 2000, c. 26, Sched. O, s. 5 (6).

Defence

(18.2) It is a defence to an action referred to in subsection (18.1) that the owner sold or transferred the motor vehicle to another person prior to the date of the order to impound. 2000, c. 26, Sched. O, s. 5 (6).

Debt due to Crown

(19) The costs incurred by the Crown in removing, storing or disposing of a drawn vehicle or load from a motor vehicle under subsection (12) or (13) are a debt due to the Crown and may be recovered by the Crown in any court of competent jurisdiction. 1997, c. 12, s. 8.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 55.1 is amended by the Statutes of Ontario, 2007, chapter 13, section 15 by adding the following subsection:

Civil Remedies Act, 2001 prevails

(19.1) Despite subsections (6), (14.1), (16) and (16.1), a vehicle that is subject to an order under Part III.1 of the Civil Remedies Act, 2001 shall not be released from detention or the impound facility except in accordance with the terms of that order, or another order, made under that Act. 2007, c. 13, s. 15.

See: 2007, c. 13, ss. 15, 49 (2).

Impound, removal service providers are independent contractors

(20) Persons who provide removal services or load removal services or who operate impound facilities, and their subcontractors, are independent contractors and not agents of the Ministry for the purposes of this section; such persons shall not charge more for their services in connection with this section than is permitted by regulation. 1997, c. 12, s. 8.

Owner may recover losses from driver

(21) The owner of a motor vehicle that is subject to an order to impound under this section may bring an action against the driver of the motor vehicle at the time the order was made to recover any costs or other losses incurred by the owner in connection with the order. 1997, c. 12, s. 8.

Holder of vehicle portion may recover costs

(21.1) The holder of the plate portion of the permit and the driver of the motor vehicle at the time the order to impound was made are jointly and severally liable to the holder of the vehicle portion of the permit who obtains an order under subsection (16.1) for any costs or losses incurred in connection with the order, and the costs and losses may be recovered in any court of competent jurisdiction. 2000, c. 26, Sched. O, s. 5 (7).

Protection from personal liability

(22) No action or other proceeding for damages shall be instituted against the Registrar or any employee of the Ministry for any act done in good faith in the execution or intended execution of his or her duty under this section or for any alleged neglect or default in the execution in good faith of that duty. 1997, c. 12, s. 8.

Crown not relieved of liability

(23) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (22) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in that subsection to which it would otherwise be subject. 1997, c. 12, s. 8.

Offence

(24) Every person who fails to comply with subsection (10) or with a requirement of a police officer or officer appointed for carrying out the provisions of this Act under subsection (9) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $20,000. 1997, c. 12, s. 8.

Same

(25) Every person who drives or operates or removes a motor vehicle that is subject to an order to impound under this section and every person who causes or permits such a motor vehicle to be driven, operated or removed is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $20,000. 1997, c. 12, s. 8.

Same

(26) Every person who provides removal services or who operates an impound facility and who charges fees for services provided in connection with this section in excess of those permitted by regulation is guilty of an offence and on conviction is liable to a fine of not less than $100 and not more than $1,000. 1997, c. 12, s. 8.

Same

(27) Every person who obstructs or interferes with a police officer or officer appointed for carrying out the provisions of this Act in the performance of his or her duties under this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $20,000 or to imprisonment for a term of not more than six months, or to both. 1997, c. 12, s. 8.

Decision without hearing is final

(27.1) The Registrar shall assess applications made under subsections (14.1) and (16.1) without a hearing and the Registrar’s decision is final. 2000, c. 26, Sched. O, s. 5 (8).

Regulations

(28) The Lieutenant Governor in Council may make regulations,

(a) prescribing the period for the purpose of subsection (3);

(b) prescribing a schedule of fees that may be charged by independent contractors for services in connection with this section;

(c) prescribing the manner in which orders may be issued and notification of them given under this section;

(d) prescribing methods for and rules of service for any notices or orders required to be served under this section;

(e) classifying persons and motor vehicles and exempting any class of person or any class of motor vehicle from any provision of this section or any regulation made under this section and prescribing conditions for any such exemptions;

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (28) is amended by the Statutes of Ontario, 1999, chapter 12, Schedule R, section 11 by adding the following clauses:

(e.1) prescribing a period of time during which all persons and motor vehicles are exempt from paragraphs 2 and 3 of subsection (3) and providing that an order to impound for 45 days under paragraph 1 of subsection (3) shall be made during that period where paragraph 2 or 3 of subsection (3) would otherwise apply;

(e.2) classifying persons and motor vehicles and exempting any class of person or motor vehicle from paragraphs 2 and 3 of subsection (3) and providing that an order to impound for 45 days under paragraph 1 of subsection (3) shall be made with respect to that class of person or motor vehicle where paragraph 2 or 3 of subsection (3) would otherwise apply, and prescribing conditions for any such exemption;

See: 1999, c. 12, Sched. R, ss. 11, 21.

(f) prescribing fees for the administration of this section;

(g) prescribing the time within which an appeal may be brought under section 50.2 with respect to an order under this section, and governing any other time requirements in the appeal process;

(h) prescribing criteria to be considered, and criteria not to be considered, by the Tribunal in determining in an appeal under section 50.2 whether exceptional hardship will result from an order to impound that is made under this section;

(i) prescribing classes of persons and motor vehicles for the purposes of subsection (14.1) and specifying eligibility criteria;

(j) prescribing rules, time periods and procedures with respect to applications under subsection (14.1). 1997, c. 12, s. 8; 1999, c. 12, Sched. G, s. 24 (16); 2000, c. 26, Sched. O, s. 5 (9).

Forms

(29) The Minister may require that forms approved by the Minister be used for any purpose of this section. 1997, c. 12, s. 8.


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