7436 v. Registrar of Motor Vehicles, 2012 CanLII 35548

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-06-25

FILE:

7436/MVIA

CASE NAME:

7436 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:

Antoine Aouad, M.D., Member

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Frances Ilari, Agent

Heard in Toronto:

June 21, 2012

REASONS FOR DECISION

A teleconference hearing was held on June 21, 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: 2009 Ford SPE (the “vehicle”)

Date of Appeal: June 4, 2012

The matter came before this Tribunal on June 21, 2012, and proceeded as a teleconference (electronic) hearing.

All documents were entered into evidence as exhibits with the consent of both parties.

The Registrar’s Agent raised an objection to the contents of the witness letter that the Applicant read into record during the Applicant’s testimony, arguing that it introduced new evidence not previously disclosed.

As the Applicant failed to enclose her witness’s statement with her written submissions, and the witness was not available for cross-examination, the letter is excluded.

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 a handwritten note, the Applicant pleads for the return of the vehicle on the ground that loss of the vehicle will make it impossible for the Applicant to get to and from work, as well to meet her commitment of driving her friend’s son and daughter.

Attached to the Notice of Appeal, the Applicant provided a statement of income from the School Board. All income amounts were redacted.

The Applicant, reading from a prepared statement, testified that at the time of the impoundment, she was unaware that the suspended driver was driving the vehicle. The Applicant reiterated her comments in the Notice of Appeal adding that her health is compromised due to her inability to attend her doctor’s office which is approximately 80 kilometers distance from where the Applicant lives.

The Applicant attested that she has not been able to maintain her obligation to her second job and has lost thousands of dollars as a result. According to the Applicant, should her vehicle not be returned, she would be forced to terminate her employment and lose tens of thousands of dollars.

The Applicant affirmed her commitment to the children and explained that without her vehicle the children’s studies have been jeopardized as she has not been able to drive them to school regularly.

In conclusion, the Applicant emphasized the fact that the impoundment is affecting the lives of innocent children, as well as that of a law-abiding citizen who had no opportunity to use her judgment to prevent the situation.

In cross-examination, the Applicant confirmed that the children live with their father in the Applicant’s house, with the young boy residing with his mother during the weekend.

Under questioning by the Registrar’s Agent, the Applicant asserted that:

• the teenage girl has missed a few days of school as her possible ride has fallen through;
• it might be possible for the boy to live with his mother during the impoundment;
• she has not been able to maintain her second job;
• she blocked her School Board income, because it was nobody’s business but her own;
• she actually did not lose income from the School Board;
• the cost of a taxi might be justified by the income, nonetheless the taxi service is not a reliable option as timelines cannot be met;
• renting a vehicle is not an option as she has no reserve funds to cover the extra expense, which would have, to be advanced;
• her credit card is maxed and she has no borrowing power;
• she will not be able to afford the impoundment fees.

Pressured by the Registrar’s Agent the Applicant disclosed that she needs to maintain regular appointments with psychiatrists and counselors as well as take medication for her condition. An appointment to the psychiatrist has been missed.

With respect to the second job, the Applicant testified that she has not discussed the future with her employer.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar regarding the impoundment;

4. 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 December 14, 2012.

5. Copy of list of staff of Public School where Applicant is employed.

6. Google driving directions to School where Applicant is employed, showing a four minute drive.

7. Google walking directions to School where Applicant is employed, showing a 22 minute walk.

8. Copy of Taxi service in town.

9. Rates for the available taxi service

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:

1. 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.

2. 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.

3. 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, 3^rd 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 requested the release of the vehicle as innocent people are being affected.

In her 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, the evidence fails to meet the criteria as the Applicant’s difficulties do not meet the requirements of the law. The Applicant is able to walk to her job, as well, she could have rented a vehicle or used the taxi service. There are options available to the Applicant and the people normally transported by the vehicle.

With respect to financial loss, the Registrar’s Agent maintains that there is no documented proof that the Applicant can neither afford a taxi nor has lost thousands of dollars.

In summary, the Registrar’s Agent concluded that there are no health and safety issues as 911 service is available in this area, and there is no evidence of any health issues that are not stable.

In rebuttal, the Applicant insisted that since she was off work for two years she has no spare income to look into any options. The Applicant expressed her feeling that is very disconcerting that no consideration can be given to the lives of two innocent children.

The Tribunal sympathizes with the Applicant’s predicament and respects her commitment to the children. Perhaps has she appealed under another section her appeal might have had a different outcome.

As it is, 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:

10. (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.

The Tribunal agrees with the Registrar’s Agent. It is clear from the evidence that the Applicant has done nothing to mitigate her circumstances. It would appear that the cost of a rental or the use of the available taxi service would have justified the expense, considering that the Applicant testified she has lost thousands of dollars from her second job.

With respect to actual finance loss, the Applicant is able to walk to her primary job, and although she claimed several times to having lost several thousand of dollars from her second job, there is no documented proof to show that the loss is significant and long lasting. As the Applicant has not negotiated final arrangements with her employer, there is still the possibility of her keeping the job.

The Tribunal considered the legislation with respect to health and safety. The Applicant was reserved and reluctant to discuss her condition, nonetheless it appears that the condition is not life threatening. The missed appointment can be rescheduled.

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 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 25, 2012