Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-11-06
FILE:
7685/MVIA
CASE NAME:
7685 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:
WILLIAM MOZA, Agent
For the Respondent:
RUSSELL MCKNIGHT, Agent
Heard in Toronto:
November 1, 2012
REASONS FOR DECISION
A hearing was held on November 1, 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: 2004 DODG CVR (the “vehicle”)
Date of Appeal: October 12, 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 support of the appeal on the grounds of exceptional hardship, the Applicant states that the vehicle is needed for work. The Applicant and his wife own a small cleaning business, and the vehicle is needed to transport not only them, but also the equipment. The Applicant further explains that the couple have a 4 year old child who needs to be taken to and from school as well as ballet class. The Applicant emphasizes that “using public transportation requires an extra time that we do not have.”
No further evidence was proffered in support of the Applicant’s appeal.
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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 14, 2013.
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 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’s Agent reiterated the statements made by the Applicant in the Notice of Appeal, adding that the Applicant, not being aware of the suspension, allowed someone else to drive his car in good faith.
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. According to the Registrar’s Agent, the Applicant lives in the City of Toronto, where public transportation is easily available, in fact, the Registrar’s Agent argues that the Applicant alludes to public transportation in his submissions, not in the sense that it not available, but simply that it would require more time.
With respect to loss of employment, since the Applicant was not present at the hearing, there is no evidence as to whether or not there has actually been loss of employment, nor is there evidence as to the possibility of mitigating loss by renting a vehicle.
The Registrar’s Agent’s position is that there is also no evidence as to whether the loss will be significant and long lasting.
The Registrar’s Agent asked the decision of the Registrar be upheld.
The onus is on the Applicant to establish exceptional hardship, as grounds of appeal, as provided in sections 50.2(3) (d) of the Act.
It does not suffice to argue financial loss in order to establish exceptional hardship. As stated by the Registrar’s Agent, legislation requires the Tribunal to assess certain facts according to section 10 of Regulation 631/98 which 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…
10.3 (b) the loss will be immediate, significant and lasting;
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
The Tribunal has evidence from the Applicant’s written submissions that public transportation is available. Thus, albeit inconvenient, an alternate mode of transportation is available to the Applicant.
Having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.
As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are 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, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
________________________________
Antoine Aouad, M.D., presiding Member
RELEASED: November 6, 2012