Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8027/MVIA
CASE NAME: 8027 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 Applicant: Self-represented
For the Respondent: JAY SHANMORGAN, Agent
Heard by teleconference: May 7, 2013
REASONS FOR DECISION
A hearing was held on May 7, 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: 1993 OLDS 88R (the “vehicle”)
Date of Appeal: April 17, 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 the vehicle is needed for the purposes of work, and/or seeking work, as well as to help the Applicant’s father and go to church on Sunday.
The Applicant explained that he allowed someone else to drive his vehicle and now understands that this was mistake. According to the Applicant, he was unaware of this person’s record.
The Applicant testified that he is an “unemployed actor” who needs to seek jobs as a bartender, security and other odd jobs to make a living. In order to seek jobs, the Applicant attested he needs a car since he is now living in Orillia, and has no other means of transportation. The Applicant claims that now his health is better he is able to seek jobs at Home Depot or Boston Pizza, but cannot do it without a vehicle.
With respect to the impoundment fees, the Applicant stated that he will be unable to cover the cost.
In cross-examination, the Applicant confirmed that even though there is another vehicle registered to him, he no longer owns it. The Applicant testified that his parents do each own a vehicle; nonetheless, he does not have the use of those vehicles. According to the Applicant he has not been able to get around since the impoundment.
The Applicant testified that he had some health issues prior to the impoundment which precluded him from getting a job, but now that his health is better he wants to get a job before the students get out of school, and needs a car in order to be able to drive around.
The Applicant has missed chiropractic appointments, which he needs as a result of a motor vehicle accident. The Applicant explained that he needs to see his chiropractor in Markham, at least three times a week, and is now seeing him once every three weeks, which, diminishes the possibility of improvement. Since the family has just moved to Orillia, the Applicant’s physicians are still in Markham.
The Registrar’s Agent explained to the Applicant that he will be able to take the unlicenced driver to Small Claims Court. According to the Applicant the driver at the time of the impoundment will be spending a year in jail, and has no means of support other than disability.
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 until January 25, 2013.
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.
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.
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 admitted to having made a mistake in allowing someone else to drive his vehicle. He explained that because of the move he is not able to get into town to try and find a job. Further it has been very stressful just thinking on how to get the funds to get the vehicle out of impoundment.
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, the Tribunal is not able to consider the possibility of loss of employment because there has been no loss of employment or loss of employment opportunity.
The Registrar’s Agent argues that the Applicant has done without a vehicle for 36 days and there is nothing to suggest that he will not be able to get around for the next 9 days, particularly since he has the assistance of his parents, who both have a car. As far as the impoundment fees are concerned, since the law provides the Applicant with an avenue to recover the loss, the Tribunal should not consider the loss. According to the Registrar’s Agent, the Applicant has not proven that any losses resulting from the impoundment are significant or long lasting and therefore the appeal should fail.
Looking at the Applicant’s current situation, it is clear that the Applicant does have an alternate mode of transportation, albeit inconvenient. The Applicant’s testimony is that his mother has been able to drive him.
With respect to loss of income, the Applicant contended that he needs a vehicle in order to start looking for work. The Tribunal agrees with the Registrar’s Agent that the Applicant inability to look for work stems from health reasons which preceded the impoundment. Thus, the Tribunal finds that there is no documented proof that any losses are significant and long lasting.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment because the cost of impoundment is not a factor to be considered in section 10 of the Regulation.
As such, 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 14, 2013