Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE:
2014-01-02
FILE:
8482/MVIA
CASE NAME:
8482 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:
ANTOINE AOUAD, M.D., Member
APPEARANCES:
For the Applicant:
Applicant’s Daughter, Agent
For the Respondent:
RUSSELL MCKNIGHT, Agent
Heard in Toronto
December 19, 2013
REASONS FOR DECISION
A hearing was held on December 19, 2013, 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”).
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 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: 2010 TOYT CBL (the “vehicle”)
Date of Appeal: December 3, 2013
As the Applicant was not present at the time scheduled for the hearing, a 30 minute grace period was granted.
No objection to the Notice of Motion to extend the period allowed for the appeal was raised by the Registrar’s Representative. The Motion was granted and the hearing proceeded.
All documents were entered into evidence as exhibits with the consent of both parties.
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 Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Applicant wrote that the vehicle is needed as she is a single mother who needs the vehicle to get to and from work. The Applicant further explains that she has no surplus income to cover the impoundment fees and that without a vehicle she will likely lose her job. According to the Applicant for the time being her employer is supplying her with transportation to her from work, as she is unable to drive due to an injury sustained at work.
The Applicant was represented by her daughter.
During the hearing, the Applicant testified that she was not aware that her son’s driver licence was suspended. She gave him the car to go and buy groceries. According to the Applicant she believed her son when he told her not to worry that everything was “OK”. The Applicant attested that she had seen his licence in the summer and was happy that his previous difficulties were over.
The Applicant confirmed that she has been reduced to working 40 hours a week and finds it will be difficult to pay for the impoundment.
In cross-examination, the Applicant confirmed that she was in shock when she found out about the impoundment. As far as work, the Applicant testified that her employer is providing her with a taxi to get to and from work, and to and from therapy.
The Applicant affirmed that she is very sorry about what happened but she was totally unaware that her son was suspended.
The Applicant confirmed, during her cross examination, that the family has been managing with one vehicle. Her daughter who lives with her and owns a vehicle, and is helping in driving her around when needed.
The suspended driver was called as witness. He confirmed that his mother knew nothing about his licence suspension, and testified that he regrets the difficulties he has caused his family.
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 While Disqualified, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 16, 2014.
The Registrar called no other evidence.
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.
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
In closing, the Applicant’s Agent emphasized that the Applicant works very hard, she used to work seven days a week, but has now been cut back to 40 hours, thus her income is reduced. The Applicant’s Agent asked for leniency due to the stress the Applicant is under, not only because of the impoundment but also because of her accident.
In his summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
With respect to due diligence, the Registrar’s Agent states that the Applicant did not check the status of the licence nor did she ask to see it. Thus due diligence was not exercised.
With regards to exceptional hardship, the Registrar’s Agent, notes that there are alternate modes of transportation available to the Applicant, as the Applicant’s employer is providing her with a vehicle; as well as her daughter is able to drive her to meet her needs.
According to the Registrar’s Agent, the Applicant has been able to get to and from work, and has not lost any significant loss.
The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal concurs with the Registrar’s Agent that evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.
As for the possible grounds of due diligence and the vehicle being stolen, evidence indicates that the Applicant gave her son the keys to the vehicle without asking him about his licence. Given the fact that the Applicant was aware of her son’s previous suspension, it was incumbent upon the Applicant to ensure that her son had a valid driver’s licence prior to handing over care and control of the vehicle. Thus, the Tribunal finds that the criteria for due diligence was not met, and that the vehicle was not stolen.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Looking at the Applicant’s current situation, it is clear that the Applicant does have alternate modes of transportation. The Applicant’s employer covers the cost of a taxi to drive the Applicant to work and to her therapeutic sessions; her daughter, who lives with the Applicant, owns another vehicle and is able to driver the Applicant.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment because the cost of impoundment is not a factor to be considered in section 10 of the Regulation.
As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
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
Antoine Aouad, M.D., Presiding Member
RELEASED: January 2, 2014