Licence Appeal Tribunal
FILE: 8220/MVIA
CASE NAME: 8220 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
8220 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Toronto: July 24, 2013
REASONS FOR DECISION
A hearing was held on July 24, 2013, at Toronto, Ontario, in person, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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 and motor vehicle in this appeal are as follows:
Owner: the Applicant
Motor Vehicle: 2008 KIA SED (the “vehicle”)
A motion was heard on July 24, 2013, at Toronto, Ontario, in person to consider the Applicant’s request for an extension of time to appeal the impoundment order of the Registrar affecting the Applicant’s motor vehicle. The motion was brought pursuant to section 7 of the Licence Appeal Tribunal Act, 1999.
On motions for an extension of time, four factors are to be considered in assessing a request for an extension of time:
- The existence of a bona fide intention to appeal;
- The length of the delay;
- Prejudice to the other party; and
- The merits of the appeal.
The Applicant’s vehicle was impounded on June 10, 2013 and she filed a Notice of Appeal on July 2, 2013, seven days after the expiration of the fifteen day period in which to file an appeal. That Notice, however, was incomplete. The Applicant did not send the required copy of the Notice of Impoundment. In addition, the fee payment was not properly made. A complete Notice of Appeal was not received until July 15, 2013, and the fee payment followed on July 16, 2013.
The Applicant testified that she had not received the Notice of Impoundment sent by the Ministry of Transportation and was therefore unaware of her right to appeal. The day after her vehicle was impounded, on the advice of the impoundment facility, she went in person to her local police station to speak to the officer involved. However, he was unavailable. The Applicant was unable to contact the officer until June 28, 2013, at which time she learned of her right to appeal.
The evidence indicates that the Notice of Impoundment was sent by the Ministry of Transportation, to the Applicant’s correct address, on June 11, 2013. The Applicant indicated that she has had a number of issues with mail service, although the examples she provided indicated that her mail was normally received within a week of being mailed.
Mr. McKnight argued that an applicant who had a genuine desire to appeal would have exercised more diligence to ensure the appeal was properly filed in a timely manner. He further argued that given the impoundment was due to expire on July 25, 2013, that the Ministry would be financially prejudiced should the Applicant succeed in her appeal.
While the Applicant did not provide a completely satisfactory explanation with respect to her mail service, the Tribunal accepts that once she became aware of her right to appeal, she had a bona fide intention to do so. The fact that her complete Notice of Appeal was not received until July 15, 2013 and the fee payment not until July 16, 2013, does not diminish the fact that she filed her appeal on Tuesday, July 2, 2013, after learning of her rights on Friday, June 28, 2013. The Tribunal therefore granted the Applicant’s motion for an extension of time and proceeded to hear the appeal.
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The suspended driver is a friend of the Applicant. Because the Applicant was feeling ill, she asked the driver to take care of her vehicle while she went to take care of herself. The Applicant was unaware of the fact that her friend did not have a valid driver’s licence.
The Applicant testified that she is a single mother with three children, two of whom attend school, one of whom is less than a year old. She does not work but relies on child support and child tax benefits for income. She normally uses the vehicle for personal use such as grocery shopping, driving her children to school or attending medical appointments. She testified that she normally sees her family doctor, who is located in another municipality, once every two weeks. She has had some health issues relating to the birth of her youngest child and has applied for Ontario Disability Benefits. She stated that she finds it easier to drive than to walk because walking can be difficult for her.
The Applicant has relied on public transportation since losing her vehicle. There is a bus stop located near her apartment, but she has found it difficult without her vehicle. The trip to her family doctor involves transferring buses and takes approximately forty-five minutes. However, she has not missed her medical appointments. While she normally drives her children to school, they were able to walk to school until the summer holidays began.
The Applicant’s mother lives in the same municipality as the Applicant. The Applicant testified that she has chosen not to tell her mother about the situation.
The Applicant has a second vehicle which is parked at her mother’s home but it is not road worthy. She is in a “financial hole” and cannot afford the repairs it needs and plans to sell it for the value of its parts. The Applicant testified that paying the impoundment costs would be a hardship for her. She has spoken to the suspended driver, who is employed, but he has advised her that he has financial difficulties and cannot help her.
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 operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is under a life time suspension.
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 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
Section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle.
Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered. In this case, since the impoundment of her vehicle, the Applicant has been able to use public transportation, although with some inconvenience. Her children were able to walk to school. The Applicant has missed no medical appointments. The Applicant does not work and only uses the vehicle for personal use. The Tribunal therefore finds that the Applicant does have a reasonable option to the impounded vehicle.
The Applicant expressed her concern about her ability to pay the costs associated with the impoundment indicating that the suspended driver is unable to assist her. O. Reg. 631/98 does not permit the Tribunal to consider the financial loss the Applicant may incur as a result of the impoundment when there is a reasonable alternative available to the impounded vehicle. Further, section 55.1(27) of the Act provides that the owner of a motor vehicle that is impounded may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained to recover any costs or other losses incurred by the owner in connection with the impoundment.
The evidence indicates that the Applicant does have an alternative to the use of the impounded vehicle, and therefore she has not established exceptional hardship as set out in subsection 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
Mary Ann Spencer, Member
Released: July 30, 2013