Licence Appeal Tribunal
FILE: 8768/MVIA
CASE NAME: 8768 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: 8768
-and-
Respondent: Registrar of Motor Vehicles
ORDER
ADJUDICATOR: Dr. Antoine A. Aouad., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: May 6, 2014
REASONS FOR DECISION
A hearing was held on May 6, 2014, to consider the Appellant'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 Appellant'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 Appellant
Motor Vehicle: 2009 BUICK ACX (the "vehicle")
Date of Appeal: April 16, 2014
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant'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 Appellant
The Appellant's written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, states that: the Appellant asked for a drive to the hospital and had no idea of the status of the licence of the driver; the Appellant needs the vehicle to attend medical appointments, public transportation is not possible due a medical condition and the cost of cabs is prohibitive.
During the hearing, the Appellant testified that she needed to go to the hospital due to post surgery complications. The Appellant was haemorrhaging and asked her son to drive her to the hospital. According to the Appellant she had no idea her son has no licence, and the impoundment has been an inconvenience as the vehicle is her "life"
In cross-examination, the Appellant affirmed that she has been dependent on other people since the impoundment and has been "house-bound" for the past month.
With respect to doctor's appointments, the Appellant attested that she had to cancel a couple of appointments because she had no way to get to the doctor or the dentist.
According to the Appellant she has rescheduled the dentist's appointment but it is not so easy to book a check up with her doctor.
The Appellant confirmed that both her daughter and her grandson have helped her with groceries.
The Registrar's Agent referred to the public transportation tables attached with the Registrar's submissions and questioned the Appellant whether she was aware of the schedules of and location of the public transportation available. The Appellant explained that she cannot sit nor walk, nor carry weights for any distance.
The Registrar's Agent pointed out that there is a bus stop at the door with 24 hours shops nearby, and suggested that the Appellant investigate the possibilities. As well the Registrar's Agent mentioned that there is "point to point" service available. The Appellant stated that the seats are too hard and she cannot sit on hard surfaces.
With respect to calling the Ministry's number to verify if her son had a valid driver's licence, the Appellant stated that she was not aware and had she been at the time she was too preoccupied with getting to the hospital.
By way of clarification, the Tribunal asked the Appellant if she called an ambulance, the Appellant replied that her son was with her so she just asked him to drive.
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:
A 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;
A copy of the notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada pursuant to which the driver's licence of the driver was then under suspension April 23, 2014..
The Registrar called Melissa Rennie, an employee of the impoundment facility where the car is stored as a witness. The witness testified that there are no modifications to the Appellant's car and that no medical devices were removed.
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 Appellant here appeals on the basis of subsection 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.
APPLICATION OF LAW TO FACTS
In closing, the Appellant just asked to have the vehicle returned.
The Registrar's Agent maintains that there is no doubt the driver was under suspension.
With regards to exceptional hardship, the Registrar's Agent noted that although the situation has been inconvenient the Appellant testified that she has the assistance of her family to take her around as necessary. There is also public transportation available in the area which the Appellant can use. The Registrar's Agent suggested that the Appellant should also enquire about "point to point" service offered by the City of London, and points out that she had not mitigated her losses. As far as health and safety is concerned the Appellant has other alternatives therefore this section cannot be considered.
The Registrar's Agent pointed out that according to the witness's testimony, the vehicle has no special medical devices or cushions.
The Registrar's Agent pointed out that section 55.1 precludes the Tribunal from considering exceptional hardship on the basis of the costs of the impoundment. However, the Appellant may seek recourse through the courts according to section 55.1(27) to recover any losses from the suspended driver.
The onus is on the Appellant to establish her 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.
With respect to due diligence, by the Appellant's own admission, stated that she asked her son to drive her to the hospital, without asking for any verification of the validity of his driver's licence.
The Tribunal finds that the requirements for due diligence under section 50.2(3)(c) of the Act were not met.
As for exceptional hardship, 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 Appellant's current situation, it is clear that the Appellant does have an alternate mode of transportation, albeit inconvenient. Not only is there public transportation available, but also the Appellant has the assistance of her family to take her to medical appointments.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal's enquiry must come to an end and the Appellant's ground of appeal of exceptional hardship must fail.
With respect to the costs of the impoundment, the Tribunal would like to reiterate the statement made by the Registrar's Agent that Section 55.1(27) provides that the owner of a vehicle may recover the costs of the impoundment from the suspended driver.
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
Dr. Antoine A. Aouad., Presiding Member
Released: May 21, 2014