8454 v. Registrar of Motor Vehicles, 2013 CanLII 83567

Licence Appeal Tribunal

Date: 2013-12-12

File: 8454/MVIA

Case Name: 8454 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

8454 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: December 5, 2013

REASONS FOR DECISION

A hearing was held on December 5, 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 "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: 2012 Niss ATS (the "vehicle")

Date of Appeal: November 18, 2013

ISSUES

As set out in the Applicant's Notice of Appeal (Exhibit #2), 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. Notice to Registrar dated November 3, 2013;
2. Driving Record of the suspended driver indicating that the driver has a lifetime licence suspension pursuant to the Criminal Code;
3. Vehicle record of the vehicle as of the date of impoundment;
4. Notice of Impoundment.

Evidence for the Applicant

The Applicant is a single mother of four, ranging in age between 19 years old and 7 months old. She is the sole breadwinner in the family. In May of this year, she took maternity leave and has recently returned to work. The events leading to the impoundment of the vehicle occurred while she was on maternity leave.

The Applicant was heading north to attend a training course. She was accompanied by her infant child, her daughter and her daughter's boyfriend of approximately six months. She stopped for gas and, because she was not feeling well, she asked her daughter's boyfriend if he could drive for an hour or so. She assumed he had a licence because he would drive his father's car from time to time. Shortly thereafter the vehicle was pulled over by the police. It was discovered that the driver had a lifetime driving suspension for numerous offences under the Criminal Code so the vehicle was impounded.

The Applicant stated that she is in dire financial straits as a result of her time off work for maternity leave. She owns her own home but has to sell it by January, 2014 because she cannot refinance it. She has a sizeable loan from the bank for the vehicle and she is currently in that difficult period between the end of her maternity leave benefits and receipt of income from her job. She cannot afford to pay the impoundment fees to redeem the vehicle.

The Applicant lives in a large urban centre. It has municipal bus service which she uses to take the infant to his regular medical check-ups. Mercifully the baby is in good health. Emergency 911 services are available in the event the Applicant or a family member require it. She takes the infant daily to her aunt who looks after him while she is at work. The distance is approximately 10 blocks and she has been walking because of continued mild weather this fall. At her aunt's house, she picks up her brother's car and has had the use of it to carry out her employment duties during the week. Her brother works close to her aunt's place so he drops the car off for her and walks to work. Her brother may finish at a different time from the Applicant so he will walk home or take a bus.

The Applicant explained that she cannot afford to redeem the vehicle from the impoundment facility because of her reduced financial circumstances. As the vehicle is financed, her inability to redeem it may cause a cascade of financial consequences with the bank, including the repossession of the vehicle and a continued need to service the loan. It is this cascade of financial consequences that the Applicant relies on to establish exceptional hardship.

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.

O. Reg. 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).

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 to 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 the following 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 evidence discloses that the vehicle was not stolen at the time it was stopped; that the licence of the driver was suspended pursuant to the Criminal Code; and that the Applicant just assumed that the driver held a valid licence and failed to conduct any enquiry into the status of his driving privileges. Accordingly, the Tribunal finds that the vehicle was properly impounded on November 3, 2013. The remaining issue is whether the Applicant will suffer exceptional hardship as a result of the impoundment. In resolving this issue, the Tribunal must examine the four factors set out above.

The Tribunal has no difficulty finding that the impact of any loss arising from the impoundment of the vehicle will be on the Applicant who is the person ordinarily transported by the vehicle and who is not the suspended driver. Given the Applicant's current financial circumstances, the fact is that there will be an immediate, significant and lasting impact on the Applicant.

While the Tribunal acknowledges that the Applicant has the right to sue the suspended driver to recover the costs of the impoundment, that right, should she exercise it, will not bear fruit for many months, or possibly years and any victory in court may be unenforceable. Her financial need is now and the impact may result in the loss of the vehicle completely together with ongoing repayment obligations to the bank.

As stated above, the Applicant needs to satisfy all of the elements of the exceptional hardship defence and it is in the last element that her appeal must fail, the element relating to alternative means of transportation. Starting with the fact that the Applicant lives in a large urban centre and has the benefit of both municipal bus services and 911 emergency services and continuing with the fact that she has access to her brother's vehicle, it is clear that alternative means of transport are available to her. The Tribunal recognizes that reliance on the charity of her brother or the time required to utilize public transit may create awkwardness and inconvenience for her, but these factors are insufficient to elevate the situation to one of exceptional hardship as contemplated in the statutory scheme.

The Applicant appeared as an honest and hardworking member of the community and the consequences of her trusting nature will be a hard burden to bear. The statutory scheme, however, has determined that the best way to ensure that suspended drivers are kept off the highway, thereby ensuring the safety of other road users, is to impose that burden on vehicle owners. Vehicle owners are in the best position to control who drives their vehicles and, accordingly, should suffer the consequences when they permit a suspended driver access to their cars. The greater pity is that the legislation and its consequences are not more widely known. The Tribunal continues to deal with Applicants who have no knowledge of these provisions until after the vehicle has been impounded. An advertising campaign publicizing these provisions may have a far greater effect on compliance and, hence, safety, than strict enforcement by itself.

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: December 12, 2013