Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7274/MVIA
CASE NAME: 7274 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: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Toronto by teleconference: April 3, 2012
REASONS FOR DECISION
A hearing was held on April 3, 2012, at Toronto, Ontario, by teleconference, 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: 2005 Hyundai XBL (the “vehicle”)
Date of Appeal: March 14, 2012
There were no preliminary matters in dispute between the 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 is 63 years old and lives with his wife and two sons in a smaller municipality located approximately thirty kilometres from a major municipality. Both the Applicant and his wife work seven days a week at a restaurant in the major municipality: the Applicant works the evening shift which begins at five p.m. and is responsible for closing the restaurant at two a.m. His wife works the day shift from ten a.m. to approximately six thirty or seven p.m. The elder of the Applicant’s two sons, the suspended driver, occasionally works at the same restaurant as his parents. The younger of the Applicant’s two sons attends school.
The Applicant testified that on the night of the impoundment, he had returned home from work and gone to bed. The vehicle was taken while he was sleeping: a friend of his son came to the house and the son and friend went out together for a meal. The Applicant testified that after receiving the call from his son that he had been arrested, his wife went to the scene and was told by a police officer that her son had not been driving. The Applicant therefore questioned whether or not the impoundment was in order.
The Applicant testified that he requires his vehicle for transportation to work. Since the impoundment, he has been able to take the bus to his workplace but there is no direct bus available for the trip home at the time his shift ends. As a result, he has, on occasion, slept on the premises with the owner’s permission and returned home when bus service resumes in the morning. On other occasions he has walked approximately one mile to a larger bus terminal where late night buses are available but using this bus service takes approximately one and one half hours versus the thirty minutes it would take to drive. The Applicant further stated that he did not have the means to take taxis to the larger bus terminal.
The Applicant’s wife owns a vehicle which she uses for transportation to her shift at the restaurant and for community volunteer work. She has, on occasion, used the vehicle to pick the Applicant up at the end of his shift, but this is stressful given the early hour and given the fact she must drive the younger son to school at eight a.m. The wife’s vehicle is not used to drive the Applicant to his shift since this requires driving in rush hour which is stressful to them. When asked by the Registrar’s Agent why the wife could not assist in picking up the Applicant, the Applicant stated that she would be too tired given the hour his shift ends and it “wasn’t fair” to ask her.
The Applicant stated that he has found the loss of the vehicle stressful and has spoken to his doctor who advised him to try to work fewer hours and avoid stress. The Applicant has not seen his doctor since the impoundment. The doctor did not tell the Applicant he needed to see him, rather, he told the Applicant to try to “take it easy”.
The Applicant’s younger son has missed the beginning of school on two occasions since the impoundment of the vehicle. On both occasions, it was because the family members were too exhausted to drive the son to school. Friends have also assisted in driving the son to school. The Applicant himself has missed work on two occasions, testifying that he was too tired to go to work.
The Applicant stated that he and his family have limited financial resources. The lossof the vehicle has meant that he could not take on a paper route as a means of augmenting his income. He testified that he did not know how the family would pay the impoundment fees if he were unsuccessful in his appeal. He hoped his elder son, the suspended driver, would be able to contribute to the impoundment fees but suspected he did not have that kind of money. The Applicant’s wife previously owned a vehicle which was impounded as a result of the elder son’s driving it while his licence was suspended and in that case the vehicle was surrendered to the impoundment facility as payment of the fees. The Applicant is currently paying off a mortgage on his home but it was purchased with a small down payment and he believes the bank would not be prepared able to assist him with funds to pay the impoundment fees.
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 driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 6, 2012.
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
The issue to be considered is whether the order to impound the vehicle will result in exceptional hardship.
Section 10 of Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle.
The Applicant used the impounded vehicle primarily for transportation to his workplace. Since the vehicle was impounded, the Applicant has used other options to reach his work and has missed only two days, testifying that he was too tired to go in. The Applicant testified that he has been able to use public transportation to reach his workplace from his home. His challenge has been the return trip home when his shift ends at approximately two a.m. He testified that there is bus service available if he is prepared to walk extra distance to a larger bus terminal; and, his wife has used the vehicle she owns to pick him up on occasion. The Tribunal appreciates that there is some inconvenience to both options given that the bus trip takes a significantly longer time than would driving, and, his wife would have to change her sleep schedule in order to pick him up. However, the inconvenience does not make the options unviable for the period of the impoundment.
The Applicant testified that he is paid on an hourly basis and lost pay on the two occasions when he was unable to go to work. However, the loss of two days pay, is neither significant nor will it last longer than the term of the impoundment. The Applicant also testified that he has been under stress since losing the vehicle. He has spoken to his physician who advised him to try to “take it easy”, but has not needed to see the physician, indicating that there is no threat to health or safety as a result of the loss of the vehicle.
The Applicant indicated that paying the fees associated with the impoundment would be a hardship. The Tribunal, however, cannot consider the costs of the impoundment itself in determining whether or not the loss of the vehicle results in exceptional hardship.
The evidence indicates that the Applicant has an alternative available to the use of the impounded vehicle and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Presiding Member
RELEASED: April 5, 2012