Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-05-31
FILE:
7379/MVIA
CASE NAME:
7379 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:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicant:
Paul Balram, Agent
For the Respondent:
Frances Ilari, Agent
Heard in Toronto:
May 25, 2012
REASONS FOR DECISION
A hearing was held on May 25, 2012, at Toronto, Ontario, in the presence of Mr. Balram, Agent, representing the Applicant and Ms. Ilari, Agent, representing the Registrar of Motor Vehicles (the “Registrar”). The Applicant is appealing under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”) from a Notice of Impoundment of her motor vehicle. The Applicant will not be identified to preserve her privacy.
THE TRIBUNAL CONFIRMS the impoundment under subsection 55.1(3) of the Act and as a result, the Applicant’s motor vehicle will be detained at the impound facility for 45 days from the date of impoundment.
FACTS
The Applicant owns the impounded motor vehicle (the “Vehicle”) which is a 1999 Toyota. She is currently separated from her husband and living on social assistance with her two children. On April 19, 2012, her husband visited the children and took them and the Applicant out for a meal. The husband was driving the Vehicle when it was stopped by police. It was then that the Applicant learned that her husband’s driver’s licence was suspended. The Applicant does not dispute the impoundment. She 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. The Applicant does not allege that the exceptional hardship will occur because of the loss of the Vehicle itself. Rather, the Applicant advises that she cannot afford to pay the impoundment fee to release the Vehicle. Her husband can pay the fee but only over time. At present, the impound facility is not prepared to allow a time payment and the Applicant is seeking a remedy before this Tribunal.
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 Act does not permit the Tribunal to consider the costs of the impoundment itself an exceptional hardship. It was noted during the hearing that the Act provides the grounds for a civil action to recover the costs of an impoundment from the suspended driver but the Tribunal does not have the jurisdiction to order such costs. Nor does the Tribunal have the jurisdiction to order a reduced impoundment fee. The Applicant has not demonstrated the exceptional hardship required as a ground for a successful appeal.
DECISION
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 from the date of impoundment.
LICENCE APPEAL TRIBUNAL
_______________________
Laurie Sanford,
Vice-Chair
RELEASED: May 31, 2012