Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-10-24
FILE:
7651/MVIA
CASE NAME:
7651 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:
David B. Caryll, Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Russell McKnight, Agent
Heard by teleconference:
October 18, 2012
REASONS FOR DECISION
A hearing was held 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 (“HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM the Order to Impound imposed by the Registrar 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.
INTRODUCTION
The Registrar of Motor Vehicles (the “Registrar”), made an order under section 55.1 of the Act to impound a motor vehicle for a period of 45 days. That order has been appealed by the owner. The owner, motor vehicle, and date of appeal are as follows:
Owner: Applicant
Motor Vehicle: 2005 Honda CRV (the “vehicle”)
Date of Appeal: September 28, 2012
The Applicant appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(d) of the Act.
This matter came before the Tribunal on October 18, 2012 and, as there were no preliminary matters, the hearing proceeded.
ISSUE
The question for the Applicant’s appeal is:
- Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship?
BACKGROUND FACTS
The following facts are not in dispute.
On Sunday, September 16, 2012, the Applicant drove the vehicle to visit her sister. During the visit, her brother-in-law (the “driver”) took the vehicle.
Later the same day, at approximately 3:56 p.m., the vehicle was stopped by the police. The police found that the driver’s licence was under suspension for an offence under the Criminal Code. The police impounded the vehicle.
EVIDENCE CONCERNING EXCEPTIONAL HARDSHIP
The Applicant’s testimony focused on the inconvenience and obstacles she faces in getting to work without her vehicle.
She testified that her place of employment is some 28 km from her residence. Her hours of work are 3:30 p.m., to 11:30 p.m., Monday through Friday. A babysitter looks after her two children, aged 9 and 13 months. The sitter arrives ½ hour before her shift starts and leaves ½ hour after the shift ends.
She testified that if she uses public transportation to go to work it takes her 2 hours each way. She said that her sitter is unprepared to come to her home 1 ½ hours early and stay an extra 1 ½ hours at he end of the shift. Therefore, she said, there is no one to look after her children for the extra three hours per day.
Evidence Under Cross-examination
The Applicant said that on occasion her father, a friend, and her sister-in-law have driven her to work. But, because of their personal commitments they are not always available.
Since the impoundment on September 16, 2012, some 23 working days, the Applicant said she has missed 5 or 6 days of work due to babysitter problems.
The Applicant occupies the basement apartment in a house where her brother and sister-in-law, and her parents live. She testified that her mother refuses to babysit her two children. Her mother said it was the Applicant’s problem. The mother looks after her brother’s children, aged 5 and 6.. But, the Applicant says her mother can’t look after her children because she has health problems.
On further questioning, the Applicant agreed there were 6 licensed and insured vehicles parked outside the house. But, except for a 1999 Acura, all the vehicles were used by different members of the family for getting to work and for personal matters. They were unavailable to her to drive to work on a regular basis.
The questioning then turned to the 1999 Acura. The Applicant said that she had tried to take the car to work but it broke down and thus was unreliable. The nature of the problem was a faulty battery. She was dismissive about having the repairs done.
Finally, she testified that the real purpose for this car was to sit outside the house to discourage thieves from breaking into the house.
LAW
Section 55.1 of the Act provides that the Registrar may make an order that a motor vehicle be 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 or set aside the order to impound, and the decision of the Tribunal is, pursuant to subsection 50.2(8) final and binding.
The owner may appeal the Registrar’s order as set out in subsection 50.2(3):
(3) [One of the] grounds on which an owner may appeal under subsection (1) and [one of the] grounds on which the Tribunal may set aside the order to impound are,
(d) that the order will result in exceptional hardship.
This Applicant appeals on the basis of sections 50.2(3)(d).
With respect to an appeal under section 50.2(3)(d) alleging that the impoundment results in exceptional hardship, the Shorter Oxford Dictionary 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.
Section 22 of Regulation 574 R.R.O. 1990, as amended by Ontario Regulation 632/98, provides for criteria to be considered and criteria not to be considered by the Tribunal in determining whether exceptional hardship will result from an order to impound under section 55.1 as follows:
22 (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 and, if no alternative is available, whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
(2) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the [Tribunal] shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an educational or training opportunity to any person.
(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 order to impound 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).
(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 to replace the impounded motor vehicle and making arrangements to do without the impounded motor vehicle or a replacement during the impound period.
EXCEPTIONAL HARDSHIP:
APPLICATION OF LAW TO FACTS
The issue to be considered in this appeal is should the Tribunal:
“… set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship [to the Applicant]?”
Before discussing the core issue in this case it must be noted that the legislation is very specific in the criteria the Tribunal may, or may not, consider on in arriving at its decision. The thrust of the legislation is shown in subsection 10(2) of the O. Reg.:
In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the [Tribunal] shall not … consider whether the impoundment will [in this case] result in,
(a) inconvenience to any person;
(b) financial or economic loss to any person;
This means that the Tribunal can not take into consideration the costs associated with retrieving a vehicle from impound, taking taxis, or the cost of other means of transportation. Nor, in this case, can it consider any inconvenience caused by babysitter problems.
To establish a case for exceptional hardship the Applicant must first establish, as required by the legislation, that:
“… no alternative to the impounded motor vehicle is available.”
The focus of the Applicant’s argument is the inconvenience caused to her by the impoundment.
The evidence shows that, during the impoundment period, the Applicant was sometimes driven to work by her father, or sister-in-law, or a friend. Public transportation is also available to the Applicant.
Aa well, there is the 6th vehicle, the 1999 Acura, which is licensed and carries insurance. According to the Applicant’s testimony, this is the only vehicle that is not exclusively used by any of the five adult family members living in the house.
The evidence offered was that she did not use this vehicle to attend work because it was unreliable. The vehicle frequently needed repairs. The example the Applicant offered was the battery problem that occurred the week prior to the hearing. She dismissed the idea that it could be easily fixed.
The Applicant also testified that the real purpose of the 6th vehicle was to discourage break-ins by having it parked in the driveway.
After reviewing the Applicant’s evidence, the Tribunal finds there are alternatives to the impounded vehicle: namely, drives from her father, sister-in-law ,or a friend, public transportation, and the 6th vehicle.
The Tribunal finds that the Applicant has not met the onus under subsection 22 (3)(a) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available”.
Therefore, the appeal on the grounds of exceptional hardship has failed.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Highway Traffic Act, R.S.O. 1990, c. H8 the Tribunal confirms the Order of the Registrar of Motor Vehicles to impound the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
David B. Caryll Member
Released: October 24, 2012