Licence Appeal Tribunal
Appeal en matière de permis
FILE: 7976/MVIA
CASE NAME: 7976 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 -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Bradley Dinning, Paralegal
For the Respondent: Russell McKnight, Agent
Heard by teleconference: April 4, 2013
REASONS FOR DECISION
A hearing was held on April 4, 2013, 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”).
Pursuant to section 50.2 (5) the Tribunal CONFIRMS THE IMPOUNDMENT. 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: 2006 BUIC ALL (the “vehicle”)
Date of Appeal: March 19, 2013
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 the Notice of Appeal, the Applicant pleads for the return of the vehicle on the ground that she exercised due diligence in forbidding her son to drive and by excluding him from her insurance policy. At the time of impoundment, the Applicant claims that her son took the car without her permission, knowledge or consent.
The Applicant further states that she is diabetic and insulin dependent, and maintains that due to her condition she needs to be mobile in order to go to the hospital if her “sugar levels spike or bottom out uncontrollably”. The Applicant stated that she is receiving Ontario Disability Support Payments with limited income, which will not cover the costs of the impoundment. The Applicant argues that she has no family living nearby nor is she aware of alternate transportation, which may be available to her.
The Applicant testified that she has several health problems including being dependant on insulin.
The Applicant confirmed that she needs the vehicle in order to attend her medical appointments, which occur once or twice a month. According to the Applicant, she has been forced to reschedule appointments since the impoundment.
With respect to the suspended driver, the Applicant reiterated her comments in the Notice of Appeal, attesting that she regularly hides the keys from her son, and has excluded her son from driving her vehicle. On the night that the vehicle was impounded, the Applicant maintains that she was sleeping and was not aware that her son had taken the car.
The Applicant affirmed that she is not aware of any public transportation routes near her house, and explained that she is not able to take public transportation because of problems with her knees, which make it difficult to get on and off public transit, as well as because of anxiety issues in being around people. Although the Applicant is not aware of the cost of public transit, she believes that she does not have the money to use public transportation.
In cross-examination, the Applicant testified that after the impoundment her neighbour was able to take her to the physician to have her blood sugar checked. The Applicant confirmed that her blood sugar is serious enough that some time ago, she had to be taken to the hospital by ambulance.
The Applicant reluctantly answered Registrar’s Agent questions regarding her financial situation, but disclosed that she owns her house and is paying $900.00 per month in mortgage payments.
The Registrar’s Agent questioned the Applicant as to whether she could have used the money she has saved in gas for public transportation. The Applicant stated that sometimes her family helps her put gas in the car. The Applicant’s Agent added that public transportation can be more expensive than gasoline.
The Applicant adamantly expressed that she is not able to take public transportation due to her knees and anxiety. The Registrar’s Agent questioned the Applicant about using the various assisted methods of transportation, such as Wheel Trans. The Applicant stated that she is not aware of any of these methods of transportation
In trying to establish the Applicant’s financial situation, the Registrar’s Agent questioned the Applicant as to her son’s ability to help her with costs. The Applicant testified that she has in fact been supporting her son for approximately six months.
The suspended driver was called as a witness.
The witness testified that he received a telephone call from his grandmother and believing that she sounded sick, he decided to check up on her; and without thinking took the car without his mother‘s permission as she was already asleep.
The witness confirmed that he is living with his mother in order to take care of her as she has dementia; in return she takes care of his needs.
When questioned as to what he would do if his mother needed medical assistance, the witness confirmed that he would call 911.
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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 26, 2015.
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
In closing, the Applicant’s Agent stated that the viva voce testimony confirms that there is a large need for the Applicant to have her vehicle returned as soon as possible in order to avoid great financial hardship. Further she needs her car to get around in order to attend medical appointments, and to get herself to the hospital if there is any indication that her sugar is either high or low. In the small city where the Applicant lives, assisted transportation is not advertised and most people are not aware of its existence.
According to the Applicant’s Agent, at no time did the Applicant allow her son to drive and she is not responsible for his actions.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
The Registrar’s Agent submits that, as the Applicant is receiving ODSP, the only loss is the impoundment fee, nonetheless since Section 27 of the Highway Traffic Act provides for recovery by the owner from the suspended driver. Thus, the Registrar’s Agent, maintains that the Tribunal is precluded from considering the impoundment fees as part of the financial hardship caused by the loss of the vehicle. .
The Registrar’s Agent quoted Section 10 of the Regulation, which requires that there are no alternatives to the impounded vehicle. The Registrar’s Agent points out that there are alternative modes of transportation available to the Applicant. The Applicant has been able obtain rides from her friends and more so, there is public transportation available to the Applicant, which the Applicant has opted not use.
The Registrar’s Agent stated that no medical appointments have been missed as the Applicant has chosen to reschedule the existing appointments until she has use of the vehicle. Further, there is no threat to the Applicant’s health as her son is there to call 911 if anything happens to her.
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.
Section 10 of Regulation 631/98 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…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
It is clear from the evidence that alternative modes of transportation are available to the Applicant albeit inconvenient, as the Applicant does not like using public transportation.
Although the Applicant has opted to reschedule some of her medical appointments, she was still able to attend to her health needs with the help of a friend.
Thus, 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.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses from the suspended driver.
In consideration of the Applicant’s health, the Tribunal considered Section 22 (1) of the Ontario Regulation 632/98 Amending Regulation 574 of R.R.O. 1990 which prescribes that:
“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 impoundment 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.”
The argument that the Applicant would be able to drive herself to the hospital during a medical emergency cannot be accepted as plausible. Further, the Tribunal notes that the Applicant’s son lives with her and testified to the fact that he would call 911 in the event of an emergency. As such the Tribunal cannot find that there is a health and safety issue.
As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
The Tribunal notes that the Applicant in her evidence stated that she exercised due diligence in forbidding her son to drive. She was aware, based on the evidence before the Tribunal, that he was a suspended driver and therefore these facts do not fall within the statutory wording of the “due diligence” ground set out in subsection 50.2 (3) cited above.
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: April 15, 2013