Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8289/MVIA
CASE NAME: 8289 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: Geneviève Blais, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Victoria Sim, Agent
Heard by teleconference: September 3, 2013
REASONS FOR DECISION AND ORDER
A hearing was held on September 3, 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”).
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 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: 2012, Chevrolet F15 (the “vehicle”)
Date of Appeal: August 15, 2013
The Applicant appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3) (d) of the Act
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. On consent of the Registrar’s Agent, the Applicant was assisted by her daughter who provided additional information to her evidence.
The Applicant indicated to the Tribunal that the vehicle is required for her daughter’s work. On August 6, 2013, her daughter was ill and her son (“the driver”) took the vehicle to get some gas and he was stopped by the police. The Applicant was aware of her son’s licence suspension. Although her son works with her daughter, she insisted that this incident was isolated and her son had not been driving the vehicle while under of suspension. The loss of the vehicle has put the family in a very difficult financial situation. Her daughter, who has two children, lives with her parents and brother. She is the main financial support of the household. While her daughter is at work, the Applicant cares for her daughter’s two children, one of whom is autistic.
The Applicant’s daughter explained to the Tribunal that her employment consists of door to door sales of home energy equipment. She requires the vehicle as she transports other workers, along with her brother, to various communities to perform the sales work. She is paid on a commission basis and receives a fee from all of the workers’ sales. Since the vehicle has been impounded she has not been working.
In cross examination, the Applicant’s daughter acknowledged there are three other vehicles registered at the home address. She explained that one vehicle is used by her father for his taxi business and is not available for her use. The two other vehicles require repairs which the family cannot afford at this time. Her father pays the mortgage and has provided transportation for grocery shopping and appointments. Access to public transportation is readily available. There are 911 services available in her area.
The Applicant’s daughter agreed with the Registrar’s Agent that her weekly commission earnings could adequately cover the cost of renting a vehicle while the vehicle is impounded. However, she asserted that the cost of renting is too prohibitive. The monthly vehicle payments are high and the family does not have the financial means to consider the option of renting a vehicle for her use. She and her brother have not investigated alternate work arrangements and have opted not to work since the date of the impoundment.
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 Fail to Remain at accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 5, 2013.
The Registrar did not call any witnesses.
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
In closing the Applicant pleaded for help as the family is having financial difficulties.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
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, the Applicant’s evidence and testimony indicated that, during the impoundment period, the loss of business by the Applicant’s daughter could have been mitigated through the rental of a vehicle. For various reasons it was dismissed as not feasible, despite potential weekly earnings that would permit this rental option to mitigate the loss of income.
The Tribunal finds that the Applicant has not met the onus under section 10 (3) (a) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available”.
Therefore, the appeal on the grounds of exceptional hardship has failed.
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
Geneviève Blais, presiding Member
RELEASED: September 06, 2013