Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-07-18
FILE:
8160/MVIA
CASE NAME:
8160 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:
Nives Montano, Presiding Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Victoria Sim, Agent
Heard by teleconference:
July 10, 2013
REASONS FOR DECISION
A hearing was held on July 10, 2013, at Toronto, Ontario, by teleconference, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result the Applicant’s motor vehicle will remain detained at the impound facility for the duration of the 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: 2013 Nissan SBL (the “vehicle”)
Date of Appeal: June 18, 2013
All documents were entered into evidence as exhibits with the consent of both parties. The hearing proceeded.
ISSUES
As set out in the Applicant’s request for hearing, 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. She was affirmed before giving testimony.
The Applicant is married and has two small children who are three and seven years old. The Applicant is currently on social assistance but has applied for a position as a youth worker. She is currently waiting to hear if she has been hired. If hired, she would be expected to start her new job almost immediately.
The Applicant’s husband, the suspended driver at the time the vehicle was impounded, works and lives in Quebec. In the Applicant’s Reason for Appeal, she states “I also pick up my husband from work out of town on Fridays and I drive him back to work on Sundays.” The suspended driver has not been back to visit their children since the vehicle’s impoundment.
The vehicle was impounded at the beginning of June while the children were still in school. They missed 4 days of school even though they had access to a school bus. During the summer months, the children are in full-time daycare. Since the vehicle’s impoundment, the Applicant takes her children to and from daycare each day by way of public transit. Unfortunately, the Applicant’s oldest son has a difficult time during this commute because he suffers from motion sickness.
The Applicant’s parents live 2 ½ hours away. They both work and have visited only once since the vehicle’s impoundment. The Applicant’s neighbours provide her with transportation to pick up groceries every two weeks, but the Applicant cannot afford to pay their gas money or to take a taxi because she is on a fixed income.
With regard to health and safety, an eye appointment was missed and was rescheduled. The youngest child has an upcoming appointment with a speech pathologist and an appointment regarding his hearing loss within the next two weeks. The Applicant, herself, has been suffering from vertigo for the past month. The local hospital is a 5 minute walk from the Applicant’s home and her family lives in an area which is 911 accessible.
On the day the vehicle was impounded, the Applicant’s oldest son was dropped off at a friend’s house. The Applicant and the suspended driver spent the day at a raceway approximately 45 minutes away from her residence. On the way home that evening, the Applicant was not feeling well. She advised the Tribunal that she had been suffering from vertigo for the past month. Since it was getting late, they had to hurry to pick-up their son at his friend’s home. Instead of waiting for her episode to subside or call for assistance, the Applicant asked her husband to drive a short way, fully aware that he was a suspended driver. The Applicant admitted that it was a “mistake”, but “took the risk”. She was emphatic that it “won’t happen again”.
The vehicle was stopped at a road check and the vehicle was impounded.
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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 2, 2013.
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
The Applicant has appealed on the ground of “exceptional hardship” under section 50.2(3)(d). The Applicant has argued that the impoundment will result in hardship as described in Section 10(2). In order for the Applicant’s appeal to be considered under section 10(2), she must demonstrate that all aspects of section 10(3) has been met. Furthermore, section 10(4) of the Regulation provides the criteria for demonstrating that every reasonable option has been considered respecting an alternative vehicle.
The Tribunal is quite sympathetic with the Applicant’s current situation, but the fact remains that she has been able to manage since the vehicle’s impoundment. The Applicant’s parents were able to assist her during their visit; her neighbours provide transportation to town once every two weeks to run errands; and she is able to use public transit to bring her children to and from daycare.
For this appeal to be successful, the first and foremost criterion the Applicant must demonstrate is that there are no alternatives to the impounded vehicle. The Applicant has had alternative means of transportation available to her, albeit sparingly, but the Tribunal finds there is no serious impact of the loss of the impounded vehicle to the Applicant and/or her children. In her testimony, the Applicant advised that the upcoming medical appointments for her younger child were scheduled after the impounded vehicle was to be released from impoundment. Apart from the oldest child suffering from motion sickness, there was no suggestion made by her that the health and safety of the children has been impacted.
As referred to above, the Applicant was emphatic at today’s hearing advising the Tribunal as well as the Agent for the Respondent that it “won’t happen again”. All vehicle owners have a responsibility to protect the public and to ensure that suspended drivers do not drive their vehicles.
After considering the criteria set out in section 10(1) of Ontario Regulation 631/98, the Tribunal finds that the Applicant has not established exceptional hardship as set out in section 50.2(3)(d) of the Act.
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
Nives Montano, Presiding Member
RELEASED: July 18, 2013