Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8434/MVIA
CASE NAME: 8434 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.
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Nives Montano, Presiding Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent & Sajay Kapur, Observer
Heard by teleconference: November 28, 2013
REASONS FOR DECISION
A hearing was held on November 28, 2013, at Toronto, Ontario, by teleconference, to consider the Appellant’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 Appellant’s motor vehicle will remain detained at the impound facility for the duration of the 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 Appellant
Motor Vehicle: 2007 Chevrolet MLT (the “vehicle”)
Date of Appeal: November 12, 2013
All documents were entered into evidence as exhibits with the consent of both parties. The hearing proceeded.
ISSUES
As set out in the Appellant’s request for hearing, the Tribunal requested confirmation from the Appellant that her ground for appeal was 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. The Appellant confirmed this ground of appeal.
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 Appellant
A summary of the Appellant’s evidence follows. She was affirmed before giving testimony.
The Appellant is married and has three adult children, two of which no longer live at home. The daughter that currently lives at home, does so on a part-time basis. She attends Durham College during the week and returns home on weekends.
Although the impounded vehicle is in the Appellant’s name, the daughter uses it for the sake of her schooling as well as driving to her part-time job on weekends.
The Appellant is self-employed and has a company vehicle. Her husband also owns his own vehicle.
With regard to health and safety, both the Appellant and her daughter are in good health and no medical appointments have been missed. Their community is also 911 accessible. The Appellant’s daughter has not missed any schooling since she has been able to drive the suspended driver’s vehicle to attend college.
On the night the Appellant’s vehicle was impounded, the Appellant’s daughter and her boyfriend, the suspended driver at the time the vehicle was impounded, attended a night club outside of their community. Having had too many drinks, the Appellant’s daughter gave the vehicle’s keys to the suspended driver to drive home, even though he had also consumed alcohol that evening.
The vehicle was stopped for having gone through a red light and the vehicle was impounded.
The Appellant, her husband and daughter have in the past participated in programs such as “keys to us” or the designated driver program should their daughter need to be picked up after consuming alcohol. The Appellant testified that the couple could have been arguing and due to a temporary lapse of judgment, her daughter “wasn’t thinking” and gave the vehicle’s keys to the suspended driver instead of calling her parents to be picked up, as she had done in the past.
Both the Appellant and her daughter were led to believe, by the suspended driver that although he had a suspended licence, there were conditions imposed on his suspended licence wherein he could drive a vehicle (for instance, to and from work). The Respondent advised the Appellant that in no uncertain terms are conditions imposed on a suspended licence. If a driver’s licence is suspended, a suspended driver is not to have care and control of any vehicle during the suspension period.
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 Appellant 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 Appellant 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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 24, 2014.
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 Appellant 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
The Appellant has appealed on the ground of “exceptional hardship” under section 50.2(3)(d). The Appellant has argued that the impoundment will result in hardship as described in section 10(2). In order for the Appellant’s appeal to be considered under section 10(2), she must demonstrate that all of section 10(3) has been met. Furthermore, section 10(4) of the Regulation provides the criteria for demonstrating that every reasonable option has been considered respecting an alternative vehicle.
Section 10 of Regulation 63/98 provides the criteria to be, as well as not to be considered in determining the appeal under this section, as follows:
- (1) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or (b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 456/10, s. 3.
(2) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) inconvenience to any person; (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; or (d) loss of education or training or of an educational or training opportunity to any person. O. Reg. 456/10, s. 3.
(3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,
(a) no alternative to the impounded motor vehicle is available; (b) the loss will be immediate, significant and lasting; (c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and (d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and (ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 456/10, s. 3.
(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. O. Reg. 456/10, s. 3 (1).
For this appeal to be successful, the first and foremost criterion the Appellant must demonstrate is that there are no alternatives to the impounded vehicle. The Appellant has testified that there are alternative means of transportation available to her. She has been driving her company vehicle during the impoundment period. The Appellant’s daughter has been driving the suspended driver’s vehicle to attend school. The Appellant’s husband also owns a vehicle. The Tribunal finds there is no serious impact of the loss of the impounded vehicle to the Appellant, other than a financial and economic loss. Since there are alternative means of transportation available to the Appellant during the vehicle’s impoundment and her daughter has been attending school, the Tribunal cannot consider the financial impact of the vehicle’s impoundment.
There has been no threat to the health and safety of the Appellant and/or her daughter. Other than attending this morning’s teleconference, there has been no time lost from work and or school.
The Appellant’s daughter and the suspended driver have indicated that they would help the Appellant with the costs associated with the vehicle’s impoundment. The Appellant has the right to seek compensation from the suspended driver, as stated in subsection 55.1(21) of the Act:
The owner of a motor vehicle that is subject to an order to impound under this section may bring an action against the driver of the motor vehicle at the time the order was made to recover any costs or other losses incurred by the owner in connection with the order.
After considering the criteria set out in section 10(1) of Ontario Regulation 631/98, the Tribunal finds that the Appellant has not established exceptional hardship as set out in section 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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Nives Montano, Presiding Member
RELEASED: December 02, 2013