Licence Appeal Tribunal
Appeal en matière de permis
FILE: 7350/MVIA
CASE NAME: 7350 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 -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Applicant: Self-Represented
For the Respondent: Russell McKnight, Agent
Heard by teleconference: May 10, 2012
REASONS FOR DECISION
A hearing was held on May 10, 2012 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: 2006, Chevrolet, HHR (the "vehicle") Date of Appeal: April 17, 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.
On the ground of appeal, exceptional hardship, the Applicant testified that she is a single parent with a 4 month old son. She lives in a rural area where she rents her father's house. The vehicle is her main source of transportation as the closest public transit is approximately eight kilometres from her residence. She uses the vehicle to purchase groceries and baby supplies and to attend three or four weekly appointments. Both she and her son attend community clinics and services for medical monitoring care and counselling for women and young children.
The Applicant stated that she receives a monthly disability support allowance of $1300.00, out of which she pays a monthly rent of $550.00. She receives no financial support from the father of her child. Occasionally, he will help out with supplies for the child.
Since the vehicle impoundment, the Applicant has relied on friends to drive her to appointments and to do her shopping. On occasion, she has taken a taxi to the closest bus stop to take public transit to her appointments. She stated that she cannot afford taxi fare on a regular basis. She has stayed overnight at friends, but finds this stressful with her young baby. She stated that finding alternative transportation has been financially difficult, inconvenient and stressful.
On cross examination, the Applicant stated that she has owned the vehicle since January 26, 2012 when she received it as a gift from her grandfather. She is responsible for the monthly cost of insurance. The Registrar's representative questioned the Applicant on a Notice of Suspension, Stop Driving document, issued on March 12, 2012 for a violation of Section 48 of the Act, related to having 50 mgs or more of alcohol in the blood. This notice was issued to a person driving her vehicle. The Applicant acknowledged the report and she stated that she had lent the vehicle to a friend for the evening. She was not aware that the friend had been drinking. The incident occurred near her house and the vehicle was not seized.
On further questioning on the impoundment of the vehicle, the Applicant stated that the suspended driver was a person who rented the basement in her house. He had been a tenant for a short period of time and she did not know him well. They had developed a friendship and periodically she lent him the vehicle to run errands. She believed he had a valid licence as, on one occasion, he had shown her some identification that looked like a valid licence. Since the impoundment, the suspended driver's mother has helped her a few times with transportation. The suspended driver has offered to help with the impoundment fees, but the Applicant does not believe this is possible as he is presently incarcerated. The Applicant accepted that she made mistakes in lending her vehicle and she now realizes she should have exercised better judgement.
The Applicant acknowledged that since the day of the impoundment she has been able to attend most of her appointments. On one occasion, the Public Health nurse visited her at home and recently a program counsellor assisted her with taxi fare. She has cancelled one medical appointment for her son and is awaiting the outcome of the appeal before rescheduling. Due to strained family relationships, she cannot rely on members of her family for additional funds to release the vehicle from the impoundment facility.
Through further questioning, the Applicant stated that there are 911 services in the community. The Applicant stated that both she and her son are medically stable at the moment. Letters of support submitted by the Applicant do not indicate that any of the missed appointments have had a negative impact on her health or that of her child. She was unable to provide evidence that there had been a threat to the health and safety of anyone dependent on the impounded vehicle.
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 under the Criminal Code of Canada pursuant to which the driver's licence of the driver was then under suspension until June 24, 2014.
The Registrar's representative 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 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 in this appeal is whether the loss of the Applicant's vehicle will result in exceptional hardship. The legislation is very clear as to what may be considered in an appeal on the ground of exceptional hardship.
The Registrar's Agent stated that on two occasions in a period of three months, the Applicant's vehicle has been stopped for violations under the Act. The intent of the legislation is to ensure that owners exercise responsibility in the proper use of their vehicles. The vehicle was impounded correctly and the ground of exceptional hardship, as defined by the Regulation, has not been met. The Applicant has found alternative means of transportation during the impoundment period.
The Tribunal must first consider whether the Applicant has an alternative to the vehicle. The evidence of the Applicant is clear that she does have alternate means of transportation. She has had help from friends and one counselor and she has used taxis and public transportation to attend most of her appointments. There is no risk of loss of employment because she receives a monthly support allowance for her and her child.
Although inconvenient and financially difficult, the Applicant has made arrangements to do without the vehicle during the impoundment period. 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 Tribunal is sympathetic to the Applicant. However, it is obligated to apply the law. There is no doubt that the Applicant is inconvenienced, and will suffer some financial or economic loss by having her vehicle impounded. The Tribunal cannot consider these two factors in determining exceptional hardship. 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 may recoup such funds from the suspended driver if she chooses to exercise her right to such compensation through a Small Claims Court action under s.27 which states:
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.
Overall, the evidence presented indicated that alternative transport is available and that the impoundment does not present a threat to the Applicant's health or safety or result in a significant or lasting impact.
Therefore, the appeal on the ground of exceptional hardship has failed.
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
Geneviève Blais, Presiding Member
RELEASED: May 17, 2012