Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7117/MVIA
CASE NAME: 7117 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
ADJUDICATOR: Nives Montano, Member
APPEARANCES:
For the Applicant: self-represented
For the Respondent: Russell McKnight, Agent
Heard by teleconference: December 28, 2011
REASONS FOR DECISION
A hearing was held on December 28, 2011, 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 “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: 2004 CHEV, OPL (the “vehicle”)
The Registrar submitted a set of certified documents which was received by the Tribunal by courier. The Applicant did not pick up and review the documents which were sent to her by the Registrar because she did not have a means to pick them up and was also on holidays and returned home last night.
The documents tendered by the Applicant and the Registrar were entered into evidence as exhibits with the consent of both parties.
ISSUE
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 set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship?
FACTS
The Tribunal heard the evidence given in support of the Applicant and the Registrar.
Evidence for the Applicant
The Applicant was affirmed before giving testimony. She is a single mother of two young children, ages 2 and 10 years old. She resides in a very small community in eastern Ontario and is employed with a not-for-profit, charitable organization located one hour from her home.
The Applicant’s boyfriend is the suspended driver at the time the vehicle was impounded. They do not reside together.
Two days prior to the vehicle’s impoundment, the Applicant injured her back. On the day the vehicle was impounded, the Applicant was experiencing significant discomfort while driving. The suspended driver and his two younger brothers were also in the vehicle. Although she was aware the suspended driver was a disqualified driver, she allowed him to take care and control of her vehicle because she was in too much pain.
They were travelling through an area in which the speed limit was reduced from 70 kph to 50 kph. The police stopped the vehicle for speeding where it was determined the driver was disqualified. He was arrested and the vehicle was impounded. Since the suspended driver violated his parole, the Applicant believes he may remain in jail until 2015.
Being remorseful for having the Applicant’s vehicle impounded, the suspended driver gave the Applicant $1,200 “to help get around”. With this money, the Applicant rented a vehicle for the first two weeks of the vehicle’s impoundment. She then relied on the kindness of a friend who drove her to and from work during the third week of the vehicle’s impoundment.
Since the end of the third week, the Applicant has not been able to get to work and has taken vacation days from December 16th until the vehicle’s release date on January 10th. During this time, the Applicant was driven to and from a community within the province by the suspended driver’s mother for a planned vacation. The Applicant’s oldest child was taken out of school and accompanied the Applicant. The youngest child was visiting with her father.
The Applicant’s employer is aware of the circumstances surrounding her absence. The Applicant feels there is a perceived threat to her job even though her employer has not voiced any concern and she has never been reprimanded in the past.
There are no health issues and the Applicant’s community is 911 accessible.
While she still had her rented vehicle, the Applicant stocked up on groceries and is able to pick up a limited selection of supplies from a pharmacy located five minutes from home.
The Applicant has been under a significant amount of “stress from worrying” about her vehicle’s impoundment and costs associated with it. She is in the process of filing for personal bankruptcy. She did not realize that “the penalty would be this bad” and would impact her life in the way that it has in allowing the suspended driver to drive her vehicle.
Evidence for the Registrar
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows (Exhibit #3):
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;
Copy of Notice to the Registrar 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 by the Registrar to impound the vehicle;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of two counts of Criminal Negligence Causing Death under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
LAW
Section 55.1 of the Act provides that the police may impound a motor vehicle, 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 or set aside the order to impound, and the decision of the Tribunal is, pursuant to subsection 50.2(8), 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. 2009, c. 5, s. 24.
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 set aside the order to impound are,
(a) that the motor vehicle that is subject to the order was stolen at the time in respect of which the order was made;
(b) that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made 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 in respect of which the order was made was not then under suspension; or
(d) that the order will result in exceptional hardship.
The Applicant here appeals on the basis of section 50.2(3)(d).
ISSUE Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship?
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 ground 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 ground of “exceptional hardship” under section 50.2(3)(d). [S]ection 10 of O. Reg. 631/98 is very specific, in that it provides the Tribunal with the criteria that the Applicant must meet to determine if in fact “exceptional hardship” will result from the impoundment.
The Applicant in this case has argued that the impoundment will result in hardship as described in section 10(2). In order for her appeal to be considered under section 10(2), she must have demonstrated that all of section 10(3) has been met. Furthermore, section 10(4) of the Regulation provides the criteria for demonstrating that every reasonable option has been considered respecting an alternative vehicle:
- (3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 456/10, s. 3.
(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. O. Reg. 456/10, s. 3 (1).
The Tribunal relies on the following clear and relevant facts:
The community in which she lives is quite small and there is no public transit, GO trains or taxis available to her;
The Applicant rented a vehicle for two weeks;
She was driven to and from work by a friend the week after she returned her rented vehicle;
She has relied on the suspended driver’s family for transportation; and
The Applicant has utilized her vacation time and her children have only missed 1 week of school and daycare.
By her own testimony, the Applicant has been experiencing significant financial difficulties leading to her pending personal bankruptcy. Unfortunately, these difficulties pre-existed and were not a direct result of the vehicle’s impoundment. Since there are alternative means of transportation available to the Applicant during the vehicle’s impoundment, the Tribunal cannot consider the Applicant’s financial struggles.
Under the Ontario Vehicle Impoundment Program, which came into effect February 1999, all vehicle owners have a responsibility to protect the public, and to ensure that suspended drivers do not drive their vehicles. Since the suspended driver may be in jail for quite some time, although the Applicant has the right to seek compensation from him, it may be difficult to recoup these costs, as stated in subsection 55.1(27) of the Act:
(27) The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
Based on the evidence before the Tribunal, and after considering the criteria set out in section 10(3) and (4) of O. Reg. 631/98, the Tribunal finds that the ground for exceptional hardship has not been 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
Nives Montano, Member
RELEASED: January 4, 2012