Licence Appeal Tribunal
FILE: 7489/MVIA
CASE NAME: 7489 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: 7489
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard in Toronto by teleconference: August 9, 2012
REASONS FOR DECISION
A teleconference hearing was held on August 9, 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 NISS MGS (the “vehicle”)
Date of Appeal: June 22, 2012
The matter came before this Tribunal on August 9, 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. The Applicant pleads for the return of the vehicle on the ground that she “exercised due diligence to determine that anyone driving…vehicle had a valid driver’s licence”. The Applicant confirms that she was aware the driver of the vehicle at the time of impoundment was suspended, and asserts that she did not give him permission to drive the vehicle.
With respect to exceptional hardship the Applicant states, “Having the car impounded has come as a huge loss and expense.” According to the Applicant the vehicle is a “necessity living in the country with a baby, but also the impoundment fees are much more that …can afford.”
The Applicant attached a letter from the suspended driver’s mother as well as a letter from an Inpatient Social Worker from the facility where the suspended driver has been admitted. Both letters confirm the suspended driver’s illness.
At the hearing, the Applicant explained the circumstances that led the suspended driver to be behind the wheel, confirming that his actions were beyond her control, and that she always exercises due diligence prior to allowing anyone to driver her vehicle.
The Applicant requested reimbursement of expenses as the vehicle has been released.
In cross-examination, the Applicant attested that she picked up the vehicle on July 03, 2012, and paid by debit.
During the time of impoundment, according to the Applicant she used an alternative vehicle, which was not very reliable.
The Applicant confirmed she is on parental leave, and was able to meet all her appointments.
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 for Life.
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 emphasized that she feels she did all she could to prevent the person from driving, but under the circumstances it is not easy. The extra expense had caused hardship and she hopes to get reimbursed for the cost of the impoundment since she is not at fault.
The Registrar’s Agent pointed out that the vehicle was impounded correctly.
The Registrar’s Agent contends that the criteria for an appeal on the grounds of exceptional hardship are very specific, particularly with respect to alternate modes of transportation. The Applicant used another vehicle. There was no loss of income as the Applicant is on parental leave.
In conclusion, the Registrar’s Agent asked that the Tribunal confirm the order to impound.
The onus is on the Applicant to establish, due diligence and exceptional hardship, as grounds of appeal, as provided in sections 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.
The Tribunal heard testimony from the Applicant that, the vehicle has been returned, and that she had the use of another vehicle during the period of impoundment. The criteria of section 50.2(3)(d) of the Act not being met, the appeal must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment. The Tribunal finds that the criteria of section 10(1) of O. Reg. 631/98 is 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 for 45 days.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: August 14, 2012