Licence Appeal Tribunal
FILE: 8121/MVIA
CASE NAME: 8121 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
8121 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: Victoria Sim, Agent
Heard by teleconference: June 19, 2013
REASONS FOR DECISION
A hearing was held on June 19, 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 “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: 2010 CHEV BLS (the “vehicle”)
Date of Appeal: June 3, 2013
As a preliminary matter, the Applicant was given the opportunity by the Tribunal to proceed or adjourn, as she did not receive the Registrar’s disclosure package.
The Registrar’s Agent informed the Applicant of the convictions registered against the suspended driver as well as listed the documents included in the Registrar’s package.
The Applicant chose to proceed with the hearing.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), 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 #2. In the Notice of Appeal, the Applicant pleads for the return of the vehicle on the ground that she lives approximately 45 minutes from work, and as a single mother, she needs the vehicle to get to and from work.
The Applicant testified that she was unaware of the driver’s suspension, and feels it is unfair that the vehicle was impounded since she has done nothing wrong and yet is the one being punished. As an independent person, the Applicant emphasized she is lost without a vehicle.
The Applicant stated that she is “old fashioned” which means that a woman is supposed to allow the man to drive. Further, it would never occur to her to ask a date if he had a driver’s licence. According to the Applicant, the suspended driver had a car when they met, and she believed he stopped driving because he could no longer afford it.
The Applicant stated that she asked her employer to change her schedule, but noted that her request was refused, thereby causing her to miss three days of work.
According to the Applicant having to ride with a friend to and from work prevents her from working overtime, which she needs to do in order to pay the impoundment fees.
In cross-examination, the Applicant confirmed that she moved in with a friend who works at the same location, and is now able to meet her schedule; nonetheless, she did miss three days of work and is still not able to work overtime.
The Applicant testified that the suspended driver might assist her with the impoundment fees, but she feels it is unlikely, as he has to support his children.
According to the Applicant, there are 911 services in the area.
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 Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is 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.
O. Reg. 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 ground 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 emphasized that she has a clean driving record and that the impoundment is unfair. According to the Applicant, she is living on an overdraft and will not be able to afford the impoundment fees.
In closing, the Registrar’s Agent pointed out that the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, has not been established.
According to the Registrar’s Agent, there are alternative modes of transportation available to the Applicant in that she has been able obtain a ride to and from work from her friend.
With respect to financial loss, the Registrar’s Agent maintains that there has been no loss of income that has been significant and long lasting. According to the Registrar’s Agent, the only loss is the impoundment fees; nonetheless, the law does provide for recovery by the owner from the suspended driver.
In summary, the Registrar’s Agent concluded that there are no health and safety issues as 911 services are available in the Applicant’s area.
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 O. Reg. 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.
It is clear from the evidence that an alternative and reasonable mode of transportation is available to the Applicant. Though regrettable that she missed three days of work, the Applicant has stated that by moving in with her friend for the time being, she is able to meet her work schedule. Therefore the loss of regularly scheduled work did not continue beyond three days. The Applicant has been getting to and from work with the assistance of her friend.
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.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses from the suspended driver.
The Tribunal finds that the criteria of section 10 (1) of O. Reg. 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., Member
Released: July 4, 2013