Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-03-01
FILE:
7229/MVIA
CASE NAME:
7229 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:
ANTOINE AOUAD, M.D. Member
APPEARANCES:
For the Applicants:
APPLICANT, Self represented
For the Respondent:
KYLE BIEL, representing the Registrar of Motor Vehicles
Heard in location:
Toronto, ON
REASONS FOR DECISION
A hearing was held on March 1, 2012, at Toronto, Ontario, 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.
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: 2009 BMW 28X (the “vehicle”)
Date of Appeal: 14 February 2012
The matter came before this Tribunal on March 01, 2012 and proceeded as an oral hearing.
All documents were entered into evidence as exhibits with the consent of both parties
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 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 the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #2. In a signed typewritten letter dated February 14, 2012, the Applicant pleas for the return of the vehicle on the ground that: the vehicle is required for work, and explains that the keys were taken without her knowledge and consent.
The Applicant testified that the person who drove the vehicle was a temporary resident at her house; she is aware of the suspension and has given him a lift whenever he asked. According the Applicant she was about to give him a lift on the day in question, but he took the car while she went into the house.
In cross-examination, the Applicant corrected the information on her written submission, which states the incident occurred at 11:30 PM rather than 11:30 AM.
In response to the Registrar’s Agent’s questions, the Applicant affirmed:
the suspended driver is supposed to pay $450.00 per month;
her daughter is working and owns an Audi;
she rented a vehicle for the time being;
renting is cheaper than using taxis
she is the owner of an insurance company, but is required to visit her clients
The Applicant confirmed that there are 911 services available in the area, and that she has maintained medical appointments.
The Applicant explained that the main financial issue is the cost of the impoundment, nonetheless not having the vehicle is a cause of stress. The steering wheel on her vehicle warms her hands, now she has to use gloves.
As far as sharing her daughter’s vehicle is concerned, the Applicant affirmed that it is not practical because of the different hours worked.
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 ability impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 20, 2012.
The Registrar did not call any witnesses.
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 section 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
In summary the Applicant noted that she has always tried to help others, she is independent and has never asked for help, nonetheless the situation at this time is quite stressful, not just financial but also because of her own health issues.
In closing the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
The Registrar’s Agent pointed out that in her closing statement the Applicant raised some issues not mentioned in the evidence-in-chief, thus not allowing the Registrar’s Agent an opportunity to cross-examine. Nonetheless, the new information does not change the position of the Registrar.
There maybe some health issues, but no appointments have been missed and there are 911 services in the area.
With respect to financial loss, the Registrar’s Agent maintains that there has not been a loss of income, as the Applicant has been able to continue working.
Furthermore, there are several alternative modes of transportation, the Applicant has the use of her daughter’s car, as well as she has sought a very good deal with the car rental company and has been able to rent a car for a nominal fee.
According to the Registrar’s Agent, the main expense would be the cost of the impoundment, yet the Highway Traffic Act allows the Applicant to obtain the costs from the suspended driver.
In rebuttal, the Applicant stated that the deal negotiated was only until March 1, 2012, and that she is not sure what the new rental fee would be. As for the suspended driver he is not able to cover the costs. With respect to using her daughter’s car, the Applicant insists that she needs to carry on her business without infringing into her daughter’s life.
The Applicant feels that she is being unjustly punished when all she has done is trying to help others.
The onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
It is clear from the evidence that alternate resources are available to the Applicant in order to carry on business. The Applicant has been able to mitigate losses and has shown no documented loss that can be considered significant and long lasting.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses.
As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
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 45 days.
LICENCE APPEAL TRIBUNAL
_______________________
Antoine Aouad, M.D., presiding Member
RELEASED: March 6, 2012