Licence Appeal Tribunal
FILE: 7411/MVIA
CASE NAME: 7411 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
7411 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Frances Ilari, Agent
Heard in Toronto: June 07, 2012
REASONS FOR DECISION
A teleconference hearing was held on June 07, 2012, at Toronto, 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 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 PONT G6E (the “vehicle”)
Date of Appeal: May 23, 2012
The matter came before this Tribunal on June 7, 2012, and proceeded as a teleconference (electronic) hearing.
The Applicant stated that she did not receive the package from the Ministry. The Tribunal proposed the two options available to the Applicant; she could either proceed or adjourn the hearing. The Applicant questioned the content of the Ministry’s submissions which were read out by the Registrar’s Agent.
After being advised of the substance of the documents, the Applicant chose to proceed.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #1), 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.
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 #1. In an undated handwritten letter, the Applicant pleads for the return of the vehicle on the ground that loss of the vehicle will cause extreme hardship. The Applicant is a new mother, who needs to be able to go out to buy the necessities of life for the family, which now includes a new baby daughter. The Applicant explained that the “car seat” is attached to her vehicle, which makes it impossible for her to use another vehicle.
At the hearing, the Applicant testified that her argument was clear in her written submissions and felt there was no point to repetition. She reiterated the comments with respect to the car seat attesting that she has been “stuck to the house”.
In cross-examination, the Respondent’s Agent questioned the Applicant about her need for “bed rest”. The Applicant affirmed that although she is not able to do heavy lifting she would be able to get about with a car; now she has to ask her mother and her friends who are passing by to deliver basic needs.
As far as the use of a taxi, the Applicant confirmed that although expensive, she would be able to use a taxi, except she would not be able to take the baby.
According to the Applicant she was taken home from the hospital by her boyfriend’s mother. Subsequently, she had to be admitted to hospital for a further period of time, and was eventually discharged with medication and home care.
The Applicant confirmed that she needs to see her obstetrician on June 12, but she may have to reschedule.
With respect to her boyfriend’s finances, the Applicant confirmed that she has asked him to contribute, nonetheless it is seems impossible as he just started working.
In response to the Registrar’s Agent’s question as to how her boyfriend came to be driving her car, the Applicant declared that at the time she was admitted to hospital, knowing her boyfriend was suspended, she asked him to drive the car home, in order not to incur parking fees.
The Applicant attested that she is on maternity leave and has had no loss of income.
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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 15, 2014.
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 asserted her understanding of the reasons why her boyfriend should not have taken the vehicle, nonetheless she explained she was in a lot of pain and stressed. She noted that she was thinking of parking fees and is now faced with the impoundment fees, which she will not be able to afford.
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 albeit an inconvenience, there are alternate modes of transportation available to the Applicant as she has been able to make arrangements to obtain rides from her friends and her mother.
With respect to financial loss, the Registrar’s Agent maintains that there has been no loss of income, as the Applicant has not missed work since she is on maternity leave. According to the Registrar’s Agent, the only loss is the impoundment fee, which cannot be considered by the Tribunal; the law provides for recovery from the suspended driver.
The Registrar’s Agent concluded that there are no health and safety issues as 911 service is available in his area and the Applicant has not missed any medical appointments, rather she has been able to reschedule or have someone drive her.
In conclusion, the Registrar’s Agent pointed out that the Applicant, being fully aware that her boyfriend’s licence was suspended, encouraged him to break the law, by allowing him to drive the vehicle home.
In rebuttal, the Applicant emphasized that she is still facing hardship in that her friends only bring basic things not everything she needs. She has had to rely on a nurse, who does not have the knowledge of a doctor and may not be enough.
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…
As addressed by the Registrar’s Agent, it is unfortunate that the Applicant knowingly allowed a disqualified driver to have care and control of her vehicle; nonetheless the Tribunal cannot and will not pass judgment but rather will rather render a decision according to the merits of this matter.
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. Albeit inconvenient, the Applicant has been able to obtain rides when needed, and has had basic necessities delivered to her home.
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 for issuing an order to release based on the Applicant’s medical needs, the Tribunal notes that the Applicant lives in a 911 area; although she has had to reschedule medical appointments, none have been missed.
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: June 11, 2012