Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-06-19
FILE:
8084/MVIA
CASE NAME:
8084 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:
APPLICANT’s Daughter, Agent
For the Respondent:
VICTORIA SIM, Agent
Heard by teleconference:
June 4, 2013
REASONS FOR DECISION
A hearing was held on June 4, 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), by Order dated June 5, 2013, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE.
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: 2008 HUYN ALS (the “vehicle”)
Date of Appeal: May 14, 2013
As a preliminary matter, the Tribunal heard a motion regarding the Applicant’s Agent authority to represent the Applicant.
The Applicant’s Agent is the Applicant’s daughter. She forwarded a Power of Attorney to the Tribunal, entered as Exhibit #4, entitled her to act on behalf of the Applicant. The Tribunal was satisfied that the daughter was empowered to represent the Applicant and the motion was granted.
All documents were entered into evidence as exhibits with the consent of both parties.
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, received by the Tribunal on May 14th, 2013 the Applicant’s Agent details the grounds for appeal explaining that her mother, the owner of the vehicle is in the hospital, and the Applicant’s son took the car without permission as he was in “distress”.
According to the Applicant’s Agent, the vehicle will be needed by her mother once she is discharged, as she will have to continue her regular doctor’s appointments. In addition, the Applicant’s Agent states that her mother will not be able to afford the impoundment fees.
At the hearing, the Applicant’s Agent testified as a witness and reiterated the statement in the Notice of Appeal affirming that the vehicle is primarily used by her mother to get to the doctor and meet her regular needs.
She pointed out that her mother will suffer hardship unless the vehicle is returned. The family lives in a rural area where neither public transit nor taxi service is available. The community is assisted by a long term care services for the elderly but 24 to 48 hours notice needs to be given and the charge depends on the distance.
In cross-examination, the Applicant’s witness confirmed that her mother is not aware that the vehicle has been impounded, as it would cause her severe distress.
To the best of the Applicant’s witness knowledge, there is 911 service available in her area.
She stated that her brother, the suspended driver, suffers from a mental illness and had to miss his appointment because he had no one to drive him.
The Registrar’s Agent pointed out the Applicant’s driver’s licence will expire on June 15, 2013, and questioned the witness as to whether her mother had made the appointment to be tested in order to renew. The witness was unaware of the expiry date and does not believe that an appointment has been made.
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 Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until February 6, 2014.
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.
APPLICATION OF LAW TO FACTS
In closing, the Applicant’s Agent stated the Applicant has not been told of the incident because of her health. According to the Agent, once her mother is released from the hospital if she has the car to get around, hardship will be diminished.
In her summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. With regard to exceptional hardship, Registrar’s Agent, pointed out that there are alternate modes of transportation available to the Applicant thus legislation does not allow further consideration.
The Registrar’s Agent argued that the Applicant has not lost wages as she is on a pension, and has not missed medical appointments because she is in the hospital. The Registrar’s Agent further suggested that the Applicant will not be able to drive as her licence is expiring on June 15, 2013.
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.
On the surface, it would appear that there are alternative modes of transportation are available to the Applicant, however, the Tribunal must consider what is a ‘reasonable’ alternative. Without public transit or taxis available in the Applicant’s area, her only recourse is to long term services for the elderly which requires 24 to 48 hours notice to access it. Her alternatives are therefore very limited. Further, the Tribunal then 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.”
The Applicant’s witness appeared to be sincere and forthright in her testimony, and the cross-examination did not lead to any doubts about the Applicant’s credibility.
The Tribunal accepts the evidence proffered by the Applicant’s Agent that the Applicant’s health might suffer exponentially were she to be deprived of her vehicle.
The Registrar’s Agent argument regarding the expiry date of the Applicant’s driver’s licence is irrelevant, as the Tribunal cannot speculate as to the Applicant’s desire or ability to renew her licence.
As such the Tribunal finds that the factor set out in criteria of section 50.2(3)(d) of the Act has been met and the appeal succeeds on that ground.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D.,Presiding Member
RELEASED: June 19, 2013