Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7232/MVIA
CASE NAME: 7232 v. Registrar of Motor Vehicles
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(3) of the Act.
Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jane Weary, Vice-Chair
APPEARANCES:
For the Applicants: Applicant, Self-represented
For the Respondent: Francis Iliar, Agent
Heard in Toronto: February 29, 2012
REASONS FOR DECISION
A hearing was held on February 29, 2012, at Toronto, Ontario, in person to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result the Applicant’s motor vehicle will remain detained at the impound facility for 45 days as stipulated in the Notice of Impoundment filed as Exhibit 1.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2007 Pontiac 6BS (the “vehicle”)
Date of Appeal: February 15, 2012
There were no preliminary matters in dispute between the parties.
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3) (d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for Applicant
A summary of the Applicant’s evidence follows.
The Applicant advised she is a twenty year old single mother working two jobs: one in a tanning salon during the day; the other three or four shifts a week at the Keg restaurant as a waitress. Her son goes to day care. The impoundment occurred when her ex common-law husband and father of her son, advised he would fail a school course if he couldn’t get the material into the school that day. She knew he was a suspended driver and offered him the taxi fare. He refused. She then agreed he could take her vehicle. He was caught moments later for speeding whereupon the vehicle was impounded.
The Applicant has had a hard time getting transport for her son to day-care and herself to her various work obligations. The cab fare for the day care is $15.00. It is a similar amount to her employment locations. .She has relied mainly on cabs and buses to transport herself and her son since the impoundment at some significant cost to her. In the 35 days which have passed since the vehicle was impounded, she has spent over $1,000.00 in cab fees.
Both her employers have been able to offer her additional shifts to help supplement these new and unforeseen transportation costs. With tips and baby bonus, her income is now close to $3,000.00 monthly
The suspended driver has shown himself to be unreliable to assist with babysitting needs while the Applicant takes on more work. Neither has he been willing to co-operate with her in meeting the costs associated with the impoundment which he occasioned.
She has been able to rely on friends and some family members to assist either with transport or babysitting on an infrequent basis. No family is in a position to lend her funds to release the vehicle from the impoundment facility. She has determined these will be over $1,600.00 or two months rent equivalent. These are monies she does not have. She has no savings and no ability to borrow. She is too young to have established a credit rating and has no credit cards. Although she has asked him, the father of her child has not agreed to assist her. He rents his own separate apartment but does not work.
There is no evidence she has sought loan arrangements from any other sources, including her employers with whom she appears to be in good standing given the evidence that they have provided her with additional shifts over the last few weeks as needed,.
The Applicant acknowledged that she lives in area serviced by 911 and provided no evidence of any health or safety risks associated with the effects of the impoundment.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner ;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of impaired driving as well as driving while suspended under the Criminal Code of Canada as a result of which the driver’s licence of the driver remains under suspension until March of 2013.
The Registrar did not call any witness.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is, final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) 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 then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine 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 then under suspension; or
(d) that the impoundment will result in exceptional hardship.
The Applicant here appeals on the basis of sections 50.2(3)(d).
The Shorter Oxford English Dictionary, 3rd ed. defines “exceptional hardship” as follows:
Exceptional : Of the nature of or forming an exception; unusual.
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:
(4) Clause (3) (d) 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.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
The Applicant’s evidence of her predicament at such a young age was compelling. However the legislation is very clear as to what may be considered in an appeal on the ground of exceptional hardship. The fact is that all members of the community must exercise prudence and control over individuals whose driving poses a threat to the health and safety of others. As the Registrar’s Agent pointed out, in this case the Applicant knew that her ex husband was a suspended driver and yet she allowed him to take her vehicle. If her appeal is allowed, the effect will be that tax payers will be responsible for the impoundment costs in her stead. In determining whether this is a just result, the legislature has made clear that financial costs are not to be considered as a basis for relief unless there is no alternative transport available.
The evidence of the Applicant here is clear that she does have alternate transport. Friends and family on rare occasions; taxis and buses on more frequent – the latter at significant cost, but a cost she is nevertheless able to compensate for in tips at additional shifts.
The Tribunal is very sympathetic to the Applicant. However, it is obligated to apply the law which is that financial and economic loss is not to be considered evidence of “exceptional hardship” unless there is no alternative transportation available and the loss will be immediate, significant and lasting. Here, the evidence establishes that there is in fact alternate transport, albeit that transport comes at a loss which is, in fact, immediate, significant and lasting.
It is hoped that this Applicant is able to find the funds from some source in order to get the vehicle released from the impoundment within the next few days and then recoup such funds from the suspended driver who is, after all, the father of her child – either through his own willing co-operation or through her right to such compensation through a small claims court action under s.27 which provides:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for the remaining period of the 45 days.
LICENCE APPEAL TRIBUNAL
Jane Weary, Vice Chair
RELEASED: March 1, 2012