Licence Appeal Tribunal
FILE: 7697/MVIA
CASE NAME: 7697 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: 7697 -and- Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: David B. Caryll, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: November 8, 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: 2000 Chrysler Marque (the "vehicle")
Date of Appeal: October 19, 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 this Tribunal on November 8, 2012 and, as there were no preliminary matters, the hearing proceeded.
ISSUE
- Should the Tribunal order the Registrar's order to release the vehicle on the basis that the impoundment will result in exceptional hardship?
BACKGROUND FACTS
The following facts are not in dispute.
On Friday, October 5, 2012, the Applicant was sitting in the passenger seat of the vehicle while a friend (the "driver") was driving the vehicle.
Later the same day, at approximately 3:07 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: his personal inconvenience; the obstacles he faces obtaining work; and, the costs associated with the impoundment of his vehicle.
The Applicant testified that his family lives some 200 .km. from his current location, and he requires the vehicle to visit them on weekends.
He also testified that he was offered a job which required him to start work before public transportation commences in the morning. He said, as he had no other means to get to work, he lost this opportunity when his vehicle was impounded.
The Applicant testified that he was participating in the Ontario Works program. However, he said they would not give him a bus pass until he was employed. So he said he has no means to get around.
Under cross-examination, the Applicant said he has used public transportation to visit a friend in the hospital. The use of taxis is available but much too expensive. He walks to the store to purchase groceries.
Although the Applicant is still receiving pay from the Ontario Works program, he does not have enough money to retrieve his vehicle when the impoundment period is finished.
The Applicant testified that he does not have any serious medical problems, and, in any event, he has access to 911 Medical Emergency Services.
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 this basis.
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.
APPLICATION OF LAW TO FACTS
With respect to exceptional hardship, the onus is on the applicant to establish that the loss of the impounded vehicle will cause exceptional hardship, as provided in subsection 50.2(3)(d) of the Act.
It must be noted, that the legislation dealing with a motor vehicle impoundment is very specific about which factors the Tribunal may, or may not, consider in arriving at its decision. Only if no alternative to the impounded exists does the regulation permit the Tribunal to proceed to consider other enumerated factors.
The evidence shows that, during the impoundment period, the Applicant has available to him public transportation and taxis. He also walks to do his shopping.
Therefore, the Tribunal cannot take into consideration the following factors that relate to this particular case:
The Applicant's distance from his family is inconvenient for him without a vehicle. However, the Tribunal may not take this inconvenience into consideration in arriving at its decision.
Costs associated with taking taxis or, other means of transportation are factors the Tribunal may not take into consideration in arriving at its decision. The fact is there are alternate means of transportation available to him.
Costs of impoundment, the $2,360 to retrieve the Applicant's vehicle from the impound facility, as the legislation provides options for the recovery of such losses.
Finally, the Tribunal heard from the Applicant about a loss of an employment opportunity, however, the Applicant testified that he continues to receive pay from the Ontario Works program. There is no evidence of a loss therefore, which is immediate, significant and long lasting.
No health or safety concerns have been established. 911 services are available to the applicant in his community.
The Tribunal acknowledges the inconvenience the impoundment puts the Applicant under, and the costs associated with the impoundment. However, 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 must fail.
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, Presiding Member
Released: November 14, 2012