Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-04-19
FILE:
7996/MVIA
CASE NAME:
7996 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Victoria Sim, Agent
Heard by teleconference:
April 18, 2013
REASONS FOR DECISION
A hearing was held on April 13, 2013, 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 “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: 2012 Ford, SPE (the “vehicle”)
Date of Appeal: April 4, 2013
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 vehicle was impounded while it was being driven by her then boyfriend, the suspended driver. The Applicant allowed the suspended driver to use her vehicle to drive to another municipality and testified that she had no idea either that he did not possess a licence or that he had been drinking. She was informed of the impoundment by the police.
The Applicant is a full time university student. She normally uses her vehicle for transportation to and from school, for errands such as buying groceries and for attending appointments. Since the impoundment, she has been using a student bus pass and has been able to get to school. She lives on the outskirts of the municipality in which her school is located but testified that there are bus routes that service the area.
The Applicant testified that the hardship she is experiencing is financial. Her primary source of income is a student loan which is supplemented by a grant she receives as a low income earner and income she earns from working as a waitress one night a week. In order to complete her education more quickly, she intends to attend school full time during the summer session and therefore will not have the opportunity to earn more income during the summer months.
The suspended driver was involved in an accident. Not only does the Applicant face having to pay impoundment fees, she also estimates that the cost to fix her vehicle will be approximately $5,000. She noted that because the accident involved alcohol, her insurance will not cover the cost of repairs. She further indicated that the suspended driver was not prepared to help her with these costs.
The Applicant’s expenses consist of monthly rent of $850, food costs of $200, cell phone costs of $125, Visa payments of $75 and pet related expenses. In order to have the car repaired, she hopes to negotiate a loan from her parents.
The Applicant is in good health and lives in an area with 911 emergency service.
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 a blood/alcohol content in excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 15, 2013.
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 appealed the impoundment on the ground of exceptional hardship. Section 10 of Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle.
Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered. In this case, the Applicant has the use of a student bus pass and testified that while she lives in an area on the outskirts of her municipality, it is served by bus routes. She has missed no school. She further testified that she is in good health and that she lives in an area served by 911. Therefore there is no immediate threat to health or safety.
The Applicant testified that her primary concern was the costs she would incur to release the vehicle from the impound facility and to repair the damage it sustained. While the Tribunal acknowledges that the costs of the impoundment and repair of the vehicle will be high on a student budget, the financial loss to the Applicant cannot be considered when there is an alternative to the impounded vehicle available. In this case, the use of public transit is a reasonable option to the impounded vehicle.
The evidence indicates that the Applicant does have an alternative to use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, presiding Member
RELEASED: April 19, 2013