7608 v. Registrar of Motor Vehicles, 2012 CanLII 57372

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-9-03

FILE:

7608/MVIA

CASE NAME:

7608 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:

RUSSELL MCKNIGHT, Agent

Heard by teleconference:

September 27, 2012

REASONS FOR DECISION

A hearing was held on September 27, 2012, at Toronto, 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 ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.2 (5) of the HTA.

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: 2003 BUIC CCU (the “vehicle”)

Date of Appeal: August 30, 2012

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

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 Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In a handwritten note, the Applicant pleaded for the return of the motor vehicle as she lives on a small pension, which does not permit much expenditure and requires her to go to a food bank. According to the Applicant, she is diabetic and requires regular monitoring by her physician on a regular basis. The Applicant states that she also consults with a psychiatrist as well as a pulmonary function clinic, and that she suffers from “stomach and bowel problems”. The Applicant explains that without the vehicle she is unable to keep her medical appointments or visit her family. She concludes her statement by providing a list of all her physicians and counsellors with attached copy of their business cards.

On September 11, the Tribunal received a Notice of Motion requesting an extension of time for the filing of her appeal as she had no money to pay the appeal fee until after she received her pension cheque.

Attached to the Notice, the Applicant provided a re-assessment from a specialist in internal medicine as well a copy of financial records.

During the hearing, the Applicant explained the reasons her appeal was late, and the circumstance surrounding her son’s suspension and the impoundment. She reiterated her comments in the Notice of Appeal that as she had difficulty breathing, she cannot walk for too long, and as such without the vehicle she is helpless even to go to the food bank and has to rely on neighbours to take her when they go out.

As clarification for the Tribunal, the Applicant confirmed that she had missed several medical appointments as she has had no means to get there. According to the Applicant, she had a sleep clinic appointment on the same day as the hearing which she was not certain she could make, as it depended on her sister’s ability to drive her. She has also not been able to pick up her medicine.

The Applicant testified that she has had to pawn her jewellery and her furniture in order to get the car out of the impoundment facility. The car was picked up on the day before this hearing, but the Applicant is unable to afford the gas.

In cross-examination, the Applicant testified that her friend has been buying the groceries for her using her bank card.

In response to the Registrar’s Agent questions as to her smoking habits, the Applicant explained that her twin sister rolls the cigarettes and gives them to her.

Since the Applicant has now been able to take the car out of impoundment, the Registrar’s Agent questioned the Applicant as to how she managed without the vehicle. The Applicant confirmed that her family and neighbours have tried to help her; also the Applicant’s case manager has gone to the Applicant’s house to see her. The Applicant attested that she was able to make arrangements with the food bank to give her rations to her neighbour.

The Applicant expressed her isolation without a car. With the car, the Applicant is able to go to the mall and walk around with her walker. These trips serve as a form of distraction.

The Applicant confirmed that as her son is receiving Ontario Disability Benefits, she will not be able to garnishee his income.

The Applicant called her friend as a witness, who confirmed that he has tried to help but it has been difficult.

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 of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver, at the time of impoundment, had been convicted of Fail To Remain At Accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension For Life.

The Registrar called no evidence.

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 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

In closing, the Applicant affirmed that she is alone and she has no money. She had to pawn her furniture and unless she gets some money within 30 days she will lose her bedroom furniture, her wall unit and her jewellery which includes a watch her mother had given her. According to the Applicant the car is her freedom and she had to do what she could to get it back. The Applicant stated that she will not be able to buy furniture now and she will never be able to replace her mother’s heirlooms.

The Respondent’s Agent argues that the Applicant does not meet the criteria as the Applicant has had no employment or loss of opportunity. The vehicle is used solely for transportation to visit the family. The legislation does not provide for inconvenience. Nonetheless, the Applicant has still been able to see her family, and the family have assisted the Applicant. Further, the neighbour has helped the Applicant get through the impoundment period by helping her to get groceries.

The Applicant will be able to resume her medical appointments now that she has the vehicle back.

The Registrar’ s Agent pointed out that the Applicant has managed to get through the 45 days with the assistance of her neighbour as well as the food bank has made sure she got her rations.

The Tribunal asked the Applicant to confirm the number of medical appointments missed by the Applicant. The Applicant responded that about 20 appointments have been missed, fourteen of which were with the pulmonary function clinic which is the reason she now had pneumonia.

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.

Given the Applicant’s health history and present condition, had the Applicant been able to appeal within the time frame of the appeal she would have undoubtedly have her vehicle returned under Section 22(1) of the Regulation which deals with the threat to the health and safety of any person ordinarily transported by the motor vehicle. The Tribunal found the Applicant totally credible, and accepts that the Applicant has missed several regular medical appointments she needs to attend, for which she requires a vehicle.

As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 Amending Regulation 574 of R.R.O. 1990 are met.

While it is true that looking in retrospect, the Tribunal now knows that the Applicant missed “approximately 14” critical pulmonary clinic appointments, which no doubt were the cause of the Applicant’s respiratory distress which was quite noticeable throughout the hearing. As well, as the Tribunal has heard about the Applicant current financial situation. The Tribunal has not reached this decision of exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses, but rather on the merits of the case.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., presiding Member

RELEASED: October 3, 2012