Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8070/MVIA
CASE NAME: 8070 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 23, 2013
REASONS FOR DECISION
A hearing was held on May 23, 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: 2005 DODG CAR (the “vehicle”)
Date of Appeal: May 7, 2013
As a preliminary matter the Tribunal heard the Motion to extend the time for Appeal.
The vehicle was impounded on April 15th, 2013, the Applicant’s Notice of Appeal received by the Tribunal on May 7, 2013, is dated May 1st, 2013, within the fifteen business days period allowed for appeal.
The Applicant claimed that she was not aware that the appeal had been filed late until she was notified by the Tribunal. The Applicant stated that since she lives out town and had no access to a fax she prepared the appeal documents, and asked a neighbour to fax them for her. According to the Applicant she does not know the reason her neighbour failed to carry through with her promise to fax the documents the day after she received them from the Applicant.
The Registrar’s Agent objected to extend on the grounds that the Applicant did not act on good faith or was not mindful of the deadline set out in the HTA or the Tribunal. The Registrar’s Agent pointed out that the Applicant was not suffering from any illness that would have prevented the filing of the documents.
The Registrar’s Agent objection was noted. The Tribunal was satisfied with the plausibility of the Applicant’s explanation. The Motion was granted.
The Tribunal recessed until the afternoon of the same day, to allow the Registrar’s office to fax disclosure documents to the Tribunal and to the Applicant.
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 meeting the familial routine, such as taking children to school, visiting the son who lives with his father, as well as attending medical appointments.
The Applicant testified as follows:
- she is a single mother with four children, 3 living with her and one living with his father in Oshawa;
- she needs to attend a treatment clinic three days a week and has had to struggle to get there;
- she and the children have been forced to take cabs;
- the Applicant’s daughter now has to walk half an hour to the nearest bus stop;
- the Applicant has started school and needs to hand in her work;
- the loss of the vehicle is costing more than she can afford as the Applicant lives out of town;
- the vehicle is needed to go into town to buy groceries.
According to the Applicant, she allowed the father of her children to drive the car because “he like to drive”, she was aware of his suspension but he told her that “everything it’s ok now”, and she was driving the van prior to the impoundment as she was not aware that her licence had been suspended for medical reasons.
In cross-examination, the Applicant confirmed that she has had to reschedule one appointment to provide a “sample”, nonetheless she has been driven by Community Care or has taken cabs to the other appointments. According to the Applicant Community Care services must be booked a week in advance. The appointment she missed was due to the fact that she failed to book in time.
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 stated that having her vehicle returned “means a lot” to her as the situation has been very stressful as she feels “stranded”. Given that she is on an Ontario Works Programme, she is not able to get the van out of impoundment. As far the Community Care services, they only take her to appointments not to buy groceries or to school, and she cannot afford cabs.
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 Applicant has alternate transportation, and the one appointment that was missed was due to the fact that the Applicant failed to book transportation in time.
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.
Further, the Registrar’s Agent argued that since the Applicant is suspended, she will not be able to drive the van, therefore the vehicle should remain in impoundment for the duration.
In rebuttal the Applicant pleaded for the return of the vehicle as she will not be able to afford the impoundment fees. Further the Applicant maintained that she is undergoing tests and believes she will have her licence returned in the near future.
The Applicant appealed on the ground of exceptional hardship, as provided in section 50.2(3)(d) of the Act. The onus is on the Applicant to establish the grounds for appeal. Thus, the argument presented by the Registrar’s Agent regarding the Applicant’s current inability to drive is irrelevant.
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 transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Looking at the Applicant’s current situation, it is clear that the Applicant does have an alternate mode of transportation, albeit inconvenient. The Applicant is able to use cabs as well as the services of Community Care.
Since the Applicant is on an Ontario Works Programme there has been no loss of income that can be considered significant and long lasting.
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.
In considering Health and Safety, the Tribunal finds that the Applicant has been able to maintain her scheduled appointments and therefore there appear to be no significant threats.
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 29, 2013