Licence Appeal Tribunal
Appeal en matière de permis
FILE: 7558/MVIA
CASE NAME: 7558 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: 7558
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Counsel
Heard in Toronto: August 23, 2012
REASONS FOR DECISION
A hearing was held on August 23, 2012, at Toronto, Ontario, in person, 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: 1996 Honda (the “vehicle”) Date of Appeal: August 3, 2012
There were no preliminary matters in dispute between the parties.
The hearing proceeded.
ISSUES
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
A summary of the Applicant’s evidence follows.
The facts were not in dispute.
The Applicant is a single mother of two sons and one daughter. Her husband passed away, although she did not say when he died. She was the registered owner of the vehicle that was impounded on July 30, 2012. Her 19-year old son who was driving the vehicle at the time the vehicle was impounded had his driver’s licence suspended on July 24, 2012, as a result of having been convicted of impaired driving on that date. Her son had subsequently lied to the Applicant by telling her that, on July 24, the presiding Judge had waived the charge of impaired driving against him because he was still a student.
On July 30, the Applicant went to a doctor’s appointment. Before leaving her home, she searched in her purse for her health card and unintentionally left her vehicle keys on a table at her home. She is close enough to her doctor’s office that she could walk to the appointment. When she returned from the doctor’s appointment at about 7:30 p.m., her keys were missing. She was subsequently called by the police later that evening, at about 10:30 p.m., and was told that her 19-year old son had been arrested for driving the subject vehicle while his licence was suspended, and that the vehicle would be impounded for 45 days. It was never her intention to allow her son to drive the subject vehicle. She told the police that she was not aware that her son’s driver’s licence had been suspended.
The Applicant works as an on-call day care child care worker. It is the impounded vehicle that she uses to drive to the work locations that are assigned to her from time to time. She is the primary user of that vehicle. As a result of the impoundment, she has to use local bus transportation to travel to her job assignments. She has had to refuse some assignments where the bus would take two or three hours to get her to work. She is on social assistance, through the Ontario Works programme, so that the amount of her earnings is deducted from her monthly social assistance cheque. She has not been penalized by Ontario Works when she has refused a job assignment because of the lengthy bus ride to get there.
Since the impoundment, she has had to rely on bus transportation, as do all her three children. She sometimes takes a taxi when she goes shopping.
The Applicant has another vehicle registered to her name. That vehicle was, at the time of this hearing, still at a garage after having repairs done to it. The Applicant must pay $600.00 for the repairs but had not yet paid that amount as of the date of the hearing. She also had a third vehicle registered to her name, but she had sold it for $300.00 in the first week of July, less than a month before the subject vehicle was impounded.
She stated that the impoundment fee is $4,800.00, but that she had purchased the impounded vehicle as a used vehicle for $1,000.00. She felt that the value of the vehicle was not worth the impoundment fee.
On cross-examination, she confirmed that she could walk to her doctor’s office to attend for appointments. She and her three children all get around by bus since the impoundment, although having to take the bus makes it more difficult to get to some work assignments because the bus ride takes longer than it would take her if she used the impounded vehicle. She receives no allowance from Ontario Works for the costs of travel by bus or taxi. In the area where she lives, she has access to 911 emergency service should the occasion arise, so that the absence of her vehicle is not a threat to her health and safety.
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, Exhibit #2, 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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 24, 2013.
The Applicant acknowledged to Counsel for the Registrar that she had received all the documents that were filed as Exhibit #3 by the Registrar at this hearing and that she had read them and that she understood them.
Counsel for the Registrar did not have any witness testify at this hearing, but relied on the documents filed as Exhibit #3.
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
As to the issue of exceptional hardship, the evidence established that, although the Applicant used the impounded vehicle to get to her work assignments, she was, after the vehicle had been impounded, able to use the local bus service as alternative transportation except to get to locations where the bus ride took two or three hours. The Ontario Works program did not penalize her for not attending at the more distant locations. The Applicant’s three children were also able to use the local bus transportation system.
The fact that the Applicant could walk to her doctor’s office for appointments and the fact that she had access to 911 emergency services meant that there was no threat to the health or safety of the Applicant or her children.
The Applicant would also have the use of her second vehicle once she paid for the repairs done to it at a local garage.
Considering the foregoing matters, and that there is alternative transportation available to the Applicant, the Tribunal concludes that the Applicant has not proved on a balance of probabilities that the impoundment of her vehicle has resulted in exceptional hardship, as defined, above. The Tribunal has a great deal of sympathy for the Applicant. She was lied to by her son, she is a single mother who is trying to raise three children and is trying valiantly to support herself and her children by working as an on-call child care worker while also receiving social assistance. She is to be commended for the determination that she has shown in the face of less than ideal circumstances. However, the Tribunal must consider only the criteria set out in the Act and its Regulations, as outlined above, and has no discretion to ignore, alter or further qualify those provisions. Accordingly, the Tribunal must conclude that the Applicant has failed to prove exceptional hardship and to bring herself within the provisions of the applicable legislation.
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
Kenneth W. Koprowski
Vice Chair
RELEASED: August 29, 2012