Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 7258/MVIA
CASE NAME: 7258 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: RUSSELL MCKNIGHT, representing the Registrar of Motor Vehicles
Heard in location: Toronto, ON
REASONS FOR DECISION
A hearing was held on March 21, 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: 2002 DODG CVR (the “vehicle”)
Date of Appeal: March 5, 2012
The matter came before this Tribunal on March 21, 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 #2), 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 an undated, typewritten note, the Applicant pleads for the return of the vehicle on the ground that the vehicle is used to transport “materials and equipment” for his wife’s business of maintenance, caretaker manager of an apartment building”. The Applicant further, explains that his wife has “had a fracture ‘Right superior and inferior pubic rami (sic)’ and is hard to travel on public transportation.”
An emergency report dated November 18, 2011, for the Applicant’s wife was attached to the Notice of Appeal
The Applicant admitted that he should not have driven. According to the Applicant the misunderstanding occurred, when his probation officer advised him he “was finished”, he assume he could drive.
In cross-examination, the Applicant confirmed that his wife has not worked since the accident in November; he has not worked since the impoundment except in an emergency when he had to use a taxi for transportation. No medical appointments have been missed.
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 Fail to remain at accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until February 17, 2013.
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 closing the Applicant noted that if he gets the car back he will not drive until the situation is cleared up.
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.
According to the Registrar’s Agent, the legislation is clear in that losses cannot be considered when the owner and the suspended driver are one and the same, as is the situation in this matter. Thus, according to the Registrar’s Agent the Tribunal is precluded from considering any losses that the Applicant may have incurred.
The Registrar’s Agent pointed out that the Applicant’s wife is the person ordinarily transported by the Applicant’s vehicle, nonetheless her losses cannot be considered as she has not worked since November.
The Registrar’s Agent emphasized that there no health and safety issues were identified.
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.
There are no alternate vehicles available to the Applicant, thus, the Tribunal may consider financial loss unless as set out in 10.3(d), the impact of the loss “will not be a result of a loss by the suspended driver”.
As the Applicant was at the time of impoundment the suspended driver, any losses incurred by his inability to work due to the impoundment cannot be used to support a decision of reversal of the impoundment. The Tribunal may consider losses suffered by:
10.3(c) “a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle”,
but only if
10.3(b) “the loss will be immediate, significant and lasting”
Evidence indicates that the person using the vehicle for transportation is the Applicant’s wife, nonetheless, no loss has been documented as it appears she has not been able to work since November due to injuries sustained in an accident.
As the Applicant was at the time of impoundment the suspended driver, and no specific losses have been established for the person ordinarily transported in the impounded vehicle, the appeal must fail.
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 22, 2012