Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7366/MVIA
CASE NAME: 7366 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 subsection 55.1(3) of the Act.
Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Andrew M. Diamond, Vice-Chair
APPEARANCES:
For the Applicant: Self-represented,
For the Respondent: Frances Illari, Agent
Heard in Toronto: May 15, 2012
REASONS FOR DECISION
A hearing was held on May 15, 2012, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result the Applicant’s motor vehicle will remain detained at the impound facility until June 8, 2012.
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: 2006 Volkswagen Jetta (the “vehicle”)
Date of Appeal: April 26, 2012
The matter came before this Tribunal on May 15, 2012. The Applicant attended with his wife and daughter.
At 3:13 pm on April 24, 2012 the vehicle was stopped by the Peel Regional Police. The vehicle was being driven by the Applicant’s son who was driving while his licence was suspended. The vehicle was impounded pursuant to section 55.1 of the Act. The Applicant has appealed the impoundment order to the Tribunal.
All documents were entered into evidence as Exhibits.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in subsection 50.2(3)(d) of the Act. The issue to be decided is: 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 Tribunal had the benefit of the oral testimony of the Applicant, his wife and daughter as well as written submissions of the Applicant’s wife.
The Applicant’s evidence is that his family needs the impounded vehicle to get the Applicant’s daughter to her summer job at Tim Horton’s and to the library for her to study for her on-line university summer course. Also the vehicle is needed to get the Applicant’s son to medical and physiotherapy appointments, as well as to assist the Applicant’s wife to get to her job.
The Applicant testified that he is a truck driver, and his wife is a school bus driver. Under cross-examination, the Applicant admitted that he owns a second car, a 2007 BMW X5 SUV and that the family has been using this car as alternate means of transportation. In fact, it was that alternate vehicle that the Applicant used to get from his home in Brampton to this hearing at the Tribunal’s offices in downtown Toronto.
The Applicant also admitted that when absolutely necessary his wife has been able to borrow a relative’s car and that his daughter has been given lifts by her friends. Furthermore, the Applicant testified that he has made alternative arrangements for the parking of his truck closer to his house than the regular yard he uses. The present truck parking is seven kilometers from the Applicant’s home. It was the Applicant’s and his wife’s evidence that she has been using the BMW to drive the Applicant to work each morning. She then uses the BMW to drive herself to work to pick up the school bus she drives. Her morning shift ends at approximately 9:30 am, after which the BMW is available to her and her daughter for family errands including taking the son to various medical appointments. The Applicant admitted that, while it is greatly inconvenient, his son has been able to make all of his mandatory doctor appointments in downtown Toronto.
The Applicant’s evidence was that the impounding of the vehicle has resulted in him having to pay $150 more per month to park his truck closer to home. Also, as the BMW X5 is not as fuel efficient as the Volkswagen, the family is having to spend more on gas each month.
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 regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content in Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 6,2012.
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 subsection 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 just asked for the “help” of the Tribunal in returning his vehicle.
In closing, the Registrar’s Agent pointed out that the Applicant and his family have alternate means of transportation to get to and from work as well as to carry out their duties.
The onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in subsection 50.2(3)(d) of the Act.
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, 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 modes of transportation are available to the Applicant and his family, as the Applicant and his other family members are able to use the BMW as well as get lifts and borrow a relative’s car when absolutely necessary.
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 O. Reg. 631/98 are not met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 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
Andrew M. Diamond
Vice-Chair
RELEASED: May 16, 2012