Licence Appeal Tribunal
FILE: 8029/MVIA
CASE NAME: 8029 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: 8029
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Victoria Sim, Agent
Heard in Toronto: May 2, 2013
REASONS FOR DECISION
A hearing was held on April 9, 2013, 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: 2006 Mazda 6 (the “vehicle”)
Date of Appeal: April 17, 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 suspended driver is a friend of the Applicant’s. The Applicant is expecting a baby in approximately six weeks. The suspended driver offered to take her vehicle in to have its tires changed. The Applicant accepted this favour from her friend without being aware that he did not possess a valid driver’s licence.
The Applicant lives alone and is self employed as a hairdresser. She normally uses her vehicle to drive to her workplace which is an approximate ten minute drive from her home. She also uses the vehicle for medical appointments; at regular two week intervals, she sees both her family doctor, who is located in a municipality an approximate twenty minute drive from the Applicant’s home, and her obstetrician, who is located in the same municipality in which the Applicant resides. The Applicant has been advised that she may only continue to work for another two weeks due to a medical condition related to her pregnancy which will require her to remain off her feet in the weeks before her baby is born.
Since the impoundment, the Applicant has not missed any work or medical appointments. Colleagues have picked her up to take her to work and she has, on occasion, used taxis. Her mother, who lives in a municipality located approximately 25 kilometres north of that in which the Applicant lives, has also helped drive the Applicant to work and to her appointments.
The Applicant testified that she earns approximately $150 daily. The cost of a taxi to her workplace is approximately $10.00. She has not rented a car because it is too expensive.
Because the Applicant is self-employed, she has no employee benefits. She testified that it is her intent to take approximately two months off work after the birth of her baby. She has savings she will use to support herself during that period. She then intends to return to work part time.
The Applicant testified that she does not have funds to pay the fees associated with the impoundment of the vehicle. The suspended driver has offered to assist with these fees but the Applicant doubts that he, in fact, has the means to do so.
The Applicant lives in a municipality 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 driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 17, 2015.
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, since the impoundment of her vehicle, the Applicant has used taxis or has been driven by friends and family. The cost of a taxi, at $10 for a one way trip, does not represent a significant portion of the $150 per day the Applicant testified she earns. Her use of taxis has only been occasional and she has also had the assistance of her mother and of friends. She has missed no work and no medical appointments. The Applicant’s vehicle is due to be released from impoundment in approximately three weeks. She will only continue to work for two of those three weeks. The Tribunal therefore finds that the Applicant does have reasonable options to the impounded vehicle.
The Applicant expressed her concern about her ability to pay the costs associated with the impoundment indicating that while the suspended driver has offered to help her with these costs, she doubts his ability to do so. Regulation 631/98 does not permit the Tribunal to consider the financial loss the Applicant may incur as a result of the impoundment when there is an alternative available 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: May 6, 2013