Licence Appeal Tribunal
FILE: 7530/MVIA
CASE NAME: 7530 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 -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley Member
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Sonia De-Santis, Agent
Heard by teleconference: August 2, 2012
REASONS FOR DECISION
A hearing was held on August, 2, 2012, at Sudbury, Ontario, by teleconference] to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
The TRIBUNAL ruled to confirm the impoundment pursuant to section 55.1(3) of the HTA. 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 Pkup (the “vehicle”) Date of Appeal: August, 2, 2012
ISSUES
A notice of Motion was submitted by the Applicants for an extension of the time limit for filing the appeal. There had been a genuine effort by the Applicants to comply with the time allotment.
The Registrar was not opposed to granting a time extension. Motion granted.
As set out in the Applicant’s request for hearing (Exhibit #1), the owner 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.
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
Ms. Forbes on behalf of the Applicants had no issue with the series of documents entered by the Registrar.
Ms. Forbes on behalf of the Applicants outlined how the impoundment of the motor vehicle in question has disrupted the lives of her and her husband who rely upon the use of the vehicle to carry on their construction business. Ms. Forbes admitted that they have been able to use alternative means of transportation to move personnel and materials to the job site albeit at a cost.
The loss of advertising from having the decaled vehicle impounded has had a negative effect on attracting new business.
Ms. Forbes has access on occasion to a vehicle owned by Ms. Bonnell.
Ms. Forbes has not faced any hardship as to access to medical appointments etc.
Ms. Noreen Bonnell, the co-owner of the impounded vehicle, has another vehicle that she owns and consequently suffers no hardship from the impounding of the vehicle co-owned with Ms. Forbes.
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 of Motor Vehicles regarding the impoundment;
- Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Drive while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until Nov. 12, 2014;
- Notice of Suspension;
- Highway Traffic Act, Section 50.2;
- Highway Traffic Act, Section 55.1; and,
- Ontario Regulation 631/98 as amended by Ont Reg 456/10.
The evidence of the Registrar settled on the documents submitted. The evidence in the documents was not questioned or challenged by the Applicants.
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 Applicant has appealed on the grounds of exceptional hardship, arguing that the impoundment will result in hardship as described in section 10 (2) (b) and arguing that under Section 10 (3) (b) that the hardship will be immediate, significant and lasting.
The evidence received from the Applicants did not support exceptional hardship. Outside of some inconvenience around facilitating business concerns, the Tribunal was unable to discern any other hardship.
In the view of the Tribunal there is an inconvenience but the arguments tendered fall well short of the exception granted in Section 10 (3) HTA
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
Alex McCauley, presiding Member
RELEASED: August 9, 2012