Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
08-02-2012
FILE:
7511/MVIA
CASE NAME:
7511 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 by teleconference:
July 31, 2012
REASONS FOR DECISION
A teleconference hearing was held on July 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: 1999 CHEV C/S (the “vehicle”)
Date of Appeal: July 6, 2012
The matter came before this Tribunal on July 31, 2012, and proceeded as a teleconference (electronic) hearing.
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 #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.
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 letter to the Tribunal the Applicant wrote that she was unaware the driver of her vehicle was disqualified and that the vehicle is needed to commute to and from her place of employment. The Applicant notes that the cost of taxis is high.
During the hearing, the Applicant testified that she allowed her roommate to drive as he needed to go to the store. The Applicant explained that she had seen him use his licence for ID in the past and just assumed he had a licence.
The Applicant admits that her decision was in poor judgment. She maintains that the cost of taxis is prohibitive and that she will not have enough money to pay the impoundment fees.
In cross-examination, the Applicant confirmed that she has been taking taxis to get to her new job and explained that she had been paying rent to the disqualified driver, and that she would like to move but cannot afford the expense at the moment. According to the Applicant she is no longer on speaking terms with the suspended driver.
In response to the suggestion of the Registrar’s Agent that she should not pay rent until she recovers her losses, the Applicant considered the possibility but stated that due to his character she does not know how the suspended driver will react.
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 Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 24, 2013.
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 admitted to a lapse in judgment but admitted she feels overwhelmed and is looking for assistance.
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 there are alternate modes of transportation available to the Applicant. In this matter the Applicant has made alternative arrangements to get to work by way of taxis.
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. The only loss is the impoundment fee; nonetheless the law does provide for recovery from the suspended driver.
Finally, the Registrar’s Agent emphasized that there are no health concerns.
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…
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 and expensive, the Applicant has been able to take taxis. Further the Applicant has not shown that her losses are immediate, significant and long lasting.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defense 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.
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: August 02, 2012