Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-03-06
FILE:
8618/MVIA
CASE NAME:
8618 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:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
March 4, 2014
REASONS FOR DECISION
A hearing was held on March 4, 2014, at Toronto, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.
PRELIMINARY ISSUES
The Agent for the Registrar requested that a set of documents comprised of information printed from the Internet be entered into evidence. The Tribunal noted that the documents had not been disclosed within the time frame required under the Tribunal’s Rules of Practice and the Applicant advised that she had not received the copy which had been sent to her by courier on March 3, 2014. After explaining the content of the documents to the Applicant, she advised that she had no objection to them being admitted. Given the documents comprised public information, the Tribunal entered the package into evidence as Exhibit 4.
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: 2005 Jeep GCK (the “vehicle”)
Date of Appeal: February 12, 2014
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 Applicant
A summary of the Applicant’s evidence follows.
The Applicant lives with her husband and her son, who is the suspended driver in this case. She testified that she suffers from a number of health issues having suffered four heart attacks and referred to a letter from her family physician, provided with her Notice of Appeal (Exhibit 2), which states: “this patient has multiple severe medical problems which are life threatening. She requires ongoing medical support and follow up”. The Applicant testified that she takes approximately 25 pills daily, including a blood thinner, the use of which requires regular blood testing.
The Applicant was not aware that her son’s driver’s licence was suspended stating that due to her health status, her family shielded her from stressful information. On the day her vehicle was impounded, her husband, who normally drives the vehicle to take her to medical appointments and picks up prescriptions for her, was ill. She therefore gave the vehicle’s keys to her son and asked him to drive to the drugstore to pick up her prescription.
The Applicant’s household has a second vehicle, a pick-up truck, registered in the Applicant’s husband’s name. Because the Applicant uses a wheelchair, and the impounded Jeep has a step, she is able to get in and out of it. She indicated that she has great difficulty getting into the pick-up truck which does not have a step. Asked by the Agent for the Registrar if she had considered renting a ramp or some other form of assistive device to help her access the vehicle, she stated that she had not. She also stated that her wheelchair would have to be put in the open back of the truck where it would be exposed to weather. The Applicant further testified that the pick-up truck is unreliable and often does not start. The vehicle is nineteen years old and her husband is unwilling to spend the money required to address its issues. She stated that the vehicle is parked most of the time and is used only in case of an emergency.
Since the impoundment, the Applicant has missed no medical appointments. Her brother has been able to take time off from his work to drive her in his own vehicle and he has picked up her prescriptions. Her husband has also picked up prescriptions using the pick-up. The Applicant has no further medical appointments scheduled during the impoundment period. However, she stated that she was due to attend a lab for tests and was concerned that her brother might not be able to take additional time off. This appointment is not pre-scheduled but is required on a regular basis by her doctor to monitor her response to the blood thinner which she takes. She last attended the lab approximately three weeks ago and stated that she sometimes “lets it ride” before she goes. Asked by the Agent for the Registrar if it would be possible for her brother to use the pick-up to reach his work and leave his vehicle for the use of the Applicant and her husband, the Applicant stated that the pick-up was too unreliable to be driven on the highway route her brother needed to take to reach his employment.
The Applicant testified that her family physician’s office is located approximately two blocks from her home. Both the drugstore and laboratory she uses are located approximately ten blocks from her home. The Applicant did not know whether the laboratory had evening or weekend hours which would permit her brother to drive her to it.
The Agent for the Registrar asked the Applicant if she was aware of a number of services for mobility impaired individuals available in her community. The Applicant indicated that she was aware of one of these services but had not made any inquiries into its use.
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 a blood alcohol concentration in excess of 80 mgs under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
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.
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.
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.
The section also provides that the Tribunal may not, except in certain circumstances, consider:
- 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 only if the owner demonstrates all of the following:
- 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.
The Regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
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 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 must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
The evidence indicates that the Applicant’s household has the use of a second vehicle. While the Applicant testified that this vehicle was unreliable, she indicated that because it is old, she and her husband are unwilling to spend the money needed to ensure it is in reliable working order. While she testified that she is reluctant to ride in this vehicle because she finds it difficult to access as it does not have a step and because her wheelchair would be exposed in the truck bed, the vehicle has been used by her husband to pick up needed prescriptions. The Applicant did not indicate that she is unable to ride in this vehicle. Further, the Applicant testified that she had not missed any scheduled medical appointments during the impoundment period because her brother had been able to use his vehicle to drive her to them. While she expressed concern that her brother might not be able to take more time off work to help her, she also indicated that she has no further appointments scheduled during the balance of the impoundment period. She also testified that she had not looked into other alternatives, including the availability of services for people with mobility issues.
The evidence indicates that the Applicant does have alternatives available to use than that of the impounded vehicle, and therefore, she has not established 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, Member
Released: March 6, 2014