Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8307/MVIA
CASE NAME: 8307 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.
The Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicant: self-represented
For the Respondent: Russell McKnight, Agent
Heard by teleconference: September 12, 2013
REASONS FOR DECISION
A hearing was held on September 12, 2013 by teleconference to consider the appeal of the Applicant, under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”) from the impoundment of her vehicle. The Applicant’s name will not be used in this decision to preserve her privacy.
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act.
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: 2002 Ford Taurus (the “vehicle”)
Date of Appeal: August 23, 2013
The owner of the vehicle appeals on the basis that the loss of motor vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(c) and (d) of the Act.
FACTS
Evidence for the Applicant
The Applicant advised that she was sleeping when her room-mate took the keys to her car. The Applicant did not assert that the car had been stolen and there was no evidence of theft. Her room-mate was stopped by the police for speeding and it was discovered that his driver’s licence was suspended. The car was impounded for 45 days. The Applicant has been out of work for about eight months and relies on payments under the Ontario Works program for support. She does not have the money to pay the impoundment fees to get the car released. She has been offered employment during the impoundment period but only if she has a car. She has been told by the employment firm she is using that if she can get her car, they will get her a job.
At the moment, she survives by walking or biking to get to her destination. Ontario Works would offer her a bus pass for a reduced rate but only if she has no car. Her brother, who lives near-by, does have a car and has driven her places from time to time.
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 with more than 80 mgs of alcohol in the blood under the Criminal Code of Canada pursuant to which the driver’s license of the driver was placed under a lifetime suspension.
The Registrar advised that the driver of the vehicle has a life time suspension of his driver’s license for repeated driving offences, including one conviction for causing bodily harm while driving.
The Registrar submits that, as unfortunate as the situation of the Applicant is, it has not materially changed as a result of the impoundment. The Applicant still receives her Ontario Works’ payments and can get around to go about her daily business. Whether the Applicant has been denied opportunities for work or whether she can afford to redeem the vehicle from the impoundment are not, under the circumstances of this case, factors the Tribunal is permitted to consider in reaching a decision.
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.
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 subparagraph 50.2(3)(d).
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis 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.
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 test of “exceptional hardship” is an onerous one. Here the Applicant has not established that there is no alternative available to her other than the vehicle. She is able to walk and to bike to the places she needs to go. Her brother is also available at times to drive her. Nor will the loss of the vehicle result in significant and lasting loss. She will be able to obtain a public transit pass on a subsidized basis from Ontario Works if she loses the vehicle. As the Registrar notes, the loss of the vehicle has not caused her current economic difficulties; they existed before the vehicle was impounded.
If the Applicant were able to pay the impoundment fees, she could find work. There is an avenue under the Act for the Applicant to bring a civil action against the driver for the recovery of her expenses. The Applicant does not think this course of action will be fruitful but she does have that avenue open to her. Considering all the circumstances of this case, the “exceptional hardship” ground of appeal has not been established.
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
Laurie Sanford, Vice-Chair
Released: September 17, 2013