Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8166/MVIA
CASE NAME: 8166 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: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Victoria Sim, Agent
Heard by teleconference: July 11, 2013
REASONS FOR DECISION
A hearing was held on July 11, 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. 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: 2001, Chevrolet Silverado (the “vehicle”)
Date of Appeal: June 19, 2013
There were no preliminary matters in dispute between the parties.
The hearing proceeded.
ISSUES
As set out in the Applicant’s Notice of Appeal (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 facts were not in dispute. The Applicant stated that she had very little else to state in her evidence than she already stated in her Notice of Appeal.
Concerning the events leading up to the impoundment of the vehicle on June 16, 2013, the Applicant confirmed that her son used the impounded vehicle on June 15, 2013. He had consumed some alcohol. Not wanting to drive the vehicle because he had been drinking, he requested a young woman that he had met that night, A.E., to drive him home. The Applicant’s son did not know that A.E.’s driver’s licence had been suspended until April 10, 2014, as a result of her conviction for impaired driving. There was no evidence that the Applicant knew A.E. or knew that her son had asked her to drive the Applicant’s vehicle.
The Applicant is a single mother of two grown children and one seven-year old. She also cares for her mother. All her children and her mother live with her. Her son works and shares in the household expenses. The Applicant’s daughter also works either five or seven days a week, but does not contribute to expenses because she is saving money to attend university next year.
The Applicant works as a personal support worker and works whenever she is called in, but does not normally work every day. She would drive to the houses of the persons that she would have to care for. Sometimes she would work three or four days a week, sometimes less and sometimes more. Her hours also vary. Sometimes she might have to work one hour a day, sometimes two hours. She stated that it is about a fifteen-minute drive from her residence to the town in which she works. There is no bus service that she can use to go to or return from work. Nor does she have friends or family to assist her.
She acknowledged that she owns three vehicles, registered in her name. In addition to the truck that was impounded, she owns two automobiles. She and her son shared the use of the truck but now he uses one of the automobiles in his work. The Applicant and her daughter are working out between them the use of the other vehicle. Her daughter works in the nearby town and is sometimes able to arrange for her friends to drive her home from work but not to work. There is a fourth automobile registered to the Applicant, but she stated that it was “trashed,” to use her terminology.
Since the impoundment on June 16, 2013, the Applicant stated that she has missed two days of work because her daughter needed one of the automobiles. The Applicant has also had to re-schedule one dentist appointment for her mother. In case of emergency, the Applicant acknowledged that she has access to the 911 telephone emergency service in her area.
In general, she acknowledged that the hardship that she is suffering arises from her difficulty in driving other people around. She acknowledged that the situation is an inconvenience to her. She is also concerned about her ability to pay the impound fee.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record as Exhibit #2 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 was then under suspension until April 10, 2014.
The Applicant acknowledged that she had received all the documents that were filed as Exhibit #2 by the Registrar at this hearing and that she had read them and that she understood them.
Counsel for the Registrar did not have any witness testify at this hearing, but relied on the documents filed as Exhibit #2.
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 Registrar submitted that the Applicant does, indeed, have alternative transportation available to her; namely, the two other automobiles. The Applicant and her daughter are able to share one of the automobiles. In addition, there is no evidence of any threat to health or safety of any person ordinarily transported in the impounded vehicle.
In addition, pursuant to section 10(2) of Regulation 631/98, the Tribunal cannot consider whether the impoundment will result in inconvenience, as the Applicant stated in her evidence.
Furthermore, because of the combined effect of section 10(2) (b), (c) and (d) and section 10(3), and because the evidence discloses that there is an alternative to the impounded vehicle, the Tribunal cannot give consideration to whether there is financial or economic loss to the Applicant and loss of employment or employment opportunity. Nor can the Tribunal give consideration to loss of education or training, about which there was no evidence in any event.
Considering the foregoing matters and considering that there is alternative transportation available to the Applicant, the Tribunal concludes that the Applicant has not been able to prove on a balance of probabilities that the impoundment of her truck has resulted in exceptional hardship, as defined, above.
The Tribunal has much sympathy for the Applicant. She is a single mother who is looking after her mother and a young child. It was only because her son had too much to drink on the night in question that he asked the person whose licence was suspended to drive him home.
Nevertheless, the Tribunal can only consider the criteria set out in the Act and its Regulations, outlined above, and does not have the discretion to ignore, alter or further qualify those provisions. The Tribunal must conclude, on the evidence presented to it, that the Applicant has failed to prove exceptional hardship and to bring herself within the provisions of the applicable legislation.
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
Kenneth W. Koprowski Vice Chair
RELEASED: July 15, 2013