Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-05-07
FILE:
8012/MVIA
CASE NAME:
8012 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:
ANTOINE AOUAD, M.D., Member
APPEARANCES:
For the Applicants:
Self-represented, Agent
For the Respondent:
JAY SHANMORGAN, Agent
Heard by teleconference:
May 1, 2013
REASONS FOR DECISION
A hearing was held on May 1, 2013, 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: 1999 JEEP CHK (the “vehicle”)
Date of Appeal: April 9, 2013
All documents were entered into evidence as exhibits with the consent of both parties.
As a preliminary matter, the Applicant brought to the Tribunal’s attention the fact that the Tribunal’s documents incorrectly showed the date of impoundment as April 3rd, 2013, whereas the correct date is March 30th. The file was amended accordingly.
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. The Applicant pleads for the return of the vehicle on the grounds that the loss of the vehicle will cause exceptional hardship, as she needs the vehicle for work purposes. The Applicant contends that as a Revenue Canada Auditor, she must travel great distances in areas where no public transportation is available. The Applicant further states that the loss of the vehicle might result in the loss of income and possibly the loss of the job.
During the hearing the Applicant pointed out that a vehicle listed as belonging to her was sold and subsequently scrapped. The Applicant attested that she has now attended at the offices of the Ministry of Transportation and had the vehicle removed from her name. With respect to the Ford pick-up, also registered to the Applicant, she asserts that it is registered as a farm vehicle and used for farm purposes only.
The Applicant contends that as an auditor for Revenue Canada, she must transport not only confidential but also government assets. The impounded vehicle is insured and adapted for security purposes. According to the Applicant she has taken a leave of absence since the impoundment, rather than breach security by using an unsecured vehicle.
With respect to the suspended driver the Applicant attested that she exercised due diligence as in November 2009, when she was told by the suspended driver that his licence had been reinstated and she was actually shown what she believed to be a valid driver’s licence. The Applicant admitted that at the time she did not notice the expiry date of the licence.
In cross-examination, the Applicant testified that she has not worked since the impoundment and is using paid vacation time. According to the Applicant she lives in a remote area in Northern Ontario where there are no car rental offices. Since the vacation leave expires on Monday, the Applicant stated that will probably have to take unpaid leave.
As far as groceries, the Applicant testified that her neighbours have been helping out, and as far as medical appointments, one would have been missed, but all have been cancelled for the time being.
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 Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension For Life.
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 maintained that she had made her case and had nothing further to state. She did, nonetheless, emphasize that she is in a “bad position” as there are no rental offices in the rural area where she lives.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly.
With respect to exceptional hardship, as defined by the Regulation, the Registrar’s Agent contends the criterion was not met. According to the Registrar’s Agent, the Applicant has not lost any income as she has taken vacation leave and is still being paid. Further, Registrar’s Agent argued that there have been no missed medical appointments and the Applicant’s neighbours have helped out with the groceries.
According to the Registrar’s Agent, there is a car rental office in a town near the Applicant, which advertises rentals for as low as $9.95 per day. Thus, the Registrar’s Agent maintains the losses are not significant and long lasting.
In rebuttal, the Applicant argued that she did have a medical appointment, which she cancelled and has not rescheduled as she does not know when she can rebook.
With respect to the rental of the vehicle, the Applicant asserted that she is not aware of any rental office in Halliburton.
Prior to setting out the reasons for decision, the Tribunal will address two points mentioned by the Applicant, which albeit not part of the grounds for appeal, the Tribunal may consider as pertinent.
The Applicant alluded to the fact that she exercised due diligence in that she was actually shown a driver’s licence by the suspended driver, after he told her that his licence had been reinstated. The Tribunal would have considered amending the Notice of Appeal to include the due diligence ground of appeal, under Section 50.2 3(c), except for the fact of the date of the occurrence which, according to the Applicant took place in November 2009. As such, the issue is irrelevant to today’s proceedings.
Given that the Applicant also alluded to health issues, the Tribunal looks to 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.”
According to the Applicant testimony, although she must see her physician on a regular basis, nonetheless she cancelled an appointment and has not scheduled any of the regular visits. Thus, it would appear that no serious repercussions have resulted or can be considered imminent.
The Tribunal will now address the Applicant’s appeal under section 50.2(3)(d) of the Act, the onus being on the Applicant to establish exceptional hardship, as the ground of appeal.
Only if no reasonable alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
Although, the Applicant does own another vehicle, the Tribunal recognizes that its registration as a farm vehicle does not permit driving on public roads, thus it cannot be considered as alternate mode of transportation. Nonetheless, the Applicant’s basic needs have been met with the assistance of friends and neighbours, which does qualify as alternate transportation.
The Tribunal does recognize that the Applicant’s job cannot be carried out with the assistance of her neighbours, and that the Applicant does need a vehicle to carry out her responsibilities. The Registrar’s Agent argues that there have been no losses, which can be considered significant and long lasting. The Tribunal concurs. The Applicant, opted to take a paid leave of absence, by using her vacation time, thus no loss of income has been incurred. Further, the Tribunal finds that the Applicant has not taken steps to mitigate her losses by enquiring into the possibility of renting a vehicle.
Thus, for the preceding reasons, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
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: May 07, 2013