Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-11-13
FILE:
8397/MVIA
CASE NAME:
8397 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
M.H., Agent
For the Respondent:
Sonia De Santis, Agent
Heard in Toronto:
November 5, 2013
REASONS FOR DECISION
A hearing was held on November 5, 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 “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: 2003 Honda Accord (the “vehicle”)
Date of Appeal: October 21, 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 Applicant
A summary of the Applicant’s evidence follows.
The impounded vehicle is owned by the Applicant but is used exclusively by his daughter who lives at a separate address with her three children. The Applicant’s Agent, the Applicant’s common law wife and the daughter’s mother, testified that the Applicant, who lives at a different address from the Agent and his daughter, has a vehicle for his own use and that the impounded vehicle was placed in the Applicant’s name for financial reasons. In the Notice of Appeal, it is noted that this was done in order to reduce the daughter’s insurance rates. The impact of the impoundment is on the daughter.
The daughter works six days a week as a technologist. While her workplace location can change as she fills in at various locations, she is currently working at the eastern side of a major municipality while residing at the western side. She normally uses the vehicle for transportation to her employment.
The daughter has three school age children. Normally, the Applicant’s Agent, her mother, who lives at a different address, takes public transportation to the daughter’s home each morning and then takes the three children to school using public transportation. At the end of the school day, she uses public transportation to pick up the children and take them to her address. Each public transportation trip takes approximately thirty minutes. When the daughter finishes her work day, she uses the vehicle to pick the children up at her mother’s home.
On the day of the impoundment, the youngest of the daughter’s children had an accident at school and needed to go home during the day. The daughter phoned her mother who picked up the youngest child using public transportation. The mother, however, was therefore not able to pick up the other two children at the end of the day and the daughter was unable to leave work early to do so. The daughter called her father, the Applicant, but was unable to reach him. She then called her children’s father, the suspended driver, and asked him to travel to her workplace to borrow her vehicle to pick up the children.
The suspended driver testified at this hearing. He stated that he had never obtained a valid Ontario driver’s licence and was aware of the suspension on his record for unpaid fines but not for the Criminal Code offence of failing to stop for police. He testified that he warned the daughter about the risk and was reluctant to take the vehicle. However, the concern that the children be left alone waiting at their school was overriding and there was insufficient time for him to travel across the city using public transportation. He stated he was unfamiliar with the area around his children’s school and was pulled over by police for a traffic infraction resulting in the impoundment of the vehicle.
Both the Applicant’s Agent and the suspended driver testified that the Applicant’s daughter relies on the vehicle for transportation to work, to pick up her children from her mother’s home after school, and for appointments and errands such as obtaining groceries. The Applicant’s Agent also expressed concern that her daughter could not afford to pay the impoundment fees which she estimated would total $3,000.
Since the impoundment, the daughter has been able to use public transportation to reach her work although this requires her to leave her home considerably earlier than normal. She has missed only one day of work, the day she took off in order to file this appeal with the Tribunal. She has, on occasion, had some assistance from friends on weekends with errands.
The Applicant’s Agent testified that her daughter and her three grandchildren are all in good health.
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’s Agent 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 was unlicenced and had been convicted under the Criminal Code of Canada of failing to stop for police for which the driver’s licence of the driver was then under suspension until January 19, 2015.
Copy of Ministry of Transportation records indicating the Applicant owns five plated vehicles.
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 sections 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.
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
With respect to the issue of exceptional hardship, Section 10 of O.Reg 631/98 is very specific. It provides the Tribunal with the criteria that must be met to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether there is an alternative to the motor vehicle.
Section 10(4) of O.Reg 631/98 requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, there is no question that the Applicant has an alternative to the impounded vehicle. The evidence indicates that the impounded vehicle is registered in the Applicant’s name only for purposes of reducing the insurance premiums which his daughter, who lives at another address and has exclusive use of the vehicle, would be required to pay were the vehicle registered in her name. The Applicant’s Agent testified that the Applicant himself owns a vehicle for his own use.
The Applicant’s daughter normally uses the impounded vehicle to reach her work, to pick her children up from her mother’s home after school, and for errands. The location of the daughter’s workplace can change because the daughter fills in at various locations as a technologist. While the current workplace is a considerable distance from the daughter’s home at the other side of a major municipality, by leaving home earlier, she has been able to reach that workplace using public transportation and has missed no work other than the day she took off in order to deal with the filing of this appeal. The Applicant’s Agent outlined the normal household routine. The Applicant’s Agent takes public transportation to her daughter’s home and then uses it again to take her three grandchildren to school. Again using public transportation, she picks the children up at the end of the school day and takes them to her own home. Her daughter then picks them up later using the impounded vehicle. The only significant change to this routine since the impoundment has been the need for the daughter to use public transportation to collect her children from her mother’s home at the end of the work day. With respect to errands, the daughter has had some assistance from friends using their vehicles on weekends.
The Tribunal notes that a considerable amount of testimony in this hearing was with respect to the circumstances surrounding the suspended driver’s use of the vehicle. While the Tribunal notes that the Applicant’s daughter and the suspended driver clearly believed they were acting in the best interests of their children’s safety, this is not a factor which the Tribunal can take into account in its decision making. Similarly, the Tribunal cannot consider the costs associated with release of the vehicle in determining whether exceptional hardship will result from its impoundment.
In this case the Applicant owns another vehicle. The Applicant’s daughter has been able to use public transportation, notwithstanding the fact that this has entailed some inconvenience. The evidence indicates that there is an alternative to use of the impounded vehicle, and therefore does not establish 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, Presiding Member
RELEASED: November 13, 2013