8244 v. Registrar of Motor Vehicles, 2013 CanLII 54071

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-08-16

FILE:

8244/MVIA

CASE NAME:

8244 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:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant:

A Family Member, Agent

For the Respondent:

Victoria Sim, Agent

Heard by teleconference:

August 14, 2013

REASONS FOR DECISION

A hearing was held on August 14, 2013 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”).

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 until the conclusion of the 45 day impound period

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: 1998 Honda CLL. (the “vehicle”)

Date of Appeal: July 25, 2013

ISSUES

As set out in the Applicant’s request for hearing (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 Registrar

The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving with a blood alcohol level in excess of 0.8 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 5, 2013.

5. Copies of the Ministry of Transportation records indicating that the Applicant owns three other plated motor vehicles: a 2006 Mercedes Benz, a 2005 Jeep and a 1995 Cadillac.

Evidence for the Applicant

The Applicant is retired and lives in a rural area in Southern Ontario that is close to two cities. 911 emergency services are available in the area. He lives with his wife, son, daughter-in-law and three year old grandson. The Applicant’s son was the suspended driver. Notwithstanding the proximity to urban centres, the Applicant states in the Notice of Appeal that the nearest bus stop is over 3 kilometers away and a car is necessary to attend medical appointments and pick up groceries and prescription drugs. Accordingly, it is the Applicant’s position that he will suffer from exceptional hardship if the vehicle is not returned to him.

The Applicant does not speak English well and was represented by his daughter-in-law who provided the sole testimony on his behalf. She told the Tribunal that the Applicant suffers from diabetes and requires health checks to ensure his blood sugar level is under control. Control of blood sugar is important at present because the Applicant will shortly undergo a knee replacement operation. He has had a serious bout of pneumonia and is under the care of a cardiologist. He saw his cardiologist on August 8 and is expecting a follow-up appointment in the near future. He has an appointment with his surgeon scheduled for August 16.

So far the Applicant has not missed any medical appointments. His daughter, who lives nearby, has been available to take him on various errands, including taking his grandson to pre-school. She is finding it a strain to do so, so much so that the child has missed one pre-school session and may miss two or three more if the vehicle is not returned. The Applicant’s brother also lives nearby and was able to take him to the August 8 medical appointment because the Applicant’s brother was on vacation at the time. He has now returned to work and is not available to assist the Applicant at present.

The Applicant has three plated vehicles registered to his name other than the impounded vehicle. One, a 1995 Cadillac is not roadworthy. It is being dismantled for parts. A second vehicle, a 2006 Jeep is driven by the Applicant`s daughter-in-law to work each day, a distance of approximately 80km each way. The third, a 2006 Mercedes, normally sits in the driveway and is used for driving the family to events and family gatherings on the weekends. The Applicant is usually driven around by his wife but she does not feel comfortable driving a large car like the Mercedes. It was because of this discomfort that the Applicant bought the smaller impounded vehicle.

At present, the Mercedes is in the body shop following a rear-end collision in July. All of the repairs have been done and the only outstanding matter is to match the paint and paint the repaired rear bumper. It is expected that the Mercedes will be released in a day or two.

The Applicant appears not to have considered using taxis or rental cars for the 11 days remaining in the impoundment period. The Applicant`s daughter-in-law testified that she felt a rental car might be too expensive but she did concede that a taxi was most likely available to take the Applicant to his August 16 appointment, if she ordered it for him.

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:

1. 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.

2. 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.

3. 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 sections 50.2(3)(d).

The Shorter Oxford English Dictionary, 3^rd 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 Tribunal is satisfied that the current loss of the vehicle will not cause exceptional hardship to the Applicant. The evidence does suggest that there will be some measure of inconvenience but, in the 34 days up to the hearing, the Applicant has not missed any medical appointments. By August 16, the date of his next appointment, he will have the Mercedes available to him. If the discomfort level is such that the Applicant`s wife does not want to drive the Mercedes, taxi service is available. While the Tribunal acknowledges that there is a cost to taxis and rental cars, the Applicant put nothing more than vague statements before the Tribunal about the burden these expenses might create. The Tribunal was not given evidence about the total monthly income of the Applicant or evidence about the cost of a taxi from his home to his medical appointments. Without this information, the Tribunal cannot determine if the economic impact of these expenses is sufficient to elevate them beyond the reasonable ability of the Applicant to pay them. Faced with the existence of alternatives to the impounded vehicle, the Tribunal cannot consider the other factors outlined in s. 10 of O. Reg. 631/98.

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 until the conclusion of the 45 day impound period.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice Chair

Released: August 16, 2013