Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-05-20
FILE: 8780/MVIA
CASE NAME: 8780 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: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard in Toronto: May 12, 2014
REASONS FOR DECISION
A hearing was held on May 12, 2014, at Toronto, in person, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
PRELIMINARY ISSUES
The Tribunal noted that it had received a package of documents from the Appellant on May 9, 2014, after the Tribunal’s office had closed for business that day. The Agent for the Registrar of Motor Vehicles (the “Registrar”) did not object to their admission, but noted that he had compiled a number of documents from the Internet in reply and requested they be entered into evidence in addition to the documents submitted under seal by the Registrar. In response to a question from the Tribunal, Mr. Kapur stated that he intended to act both as the Agent for the Registrar and as a witness in order to introduce these documents. The Tribunal noted that as the Agent of the Registrar, it was inappropriate for Mr. Kapur to be giving evidence and decided that the documents were inadmissible.
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: 2003 Infiniti G35 (the “vehicle”)
Date of Appeal: April 22, 2014
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
A summary of the Appellant’s evidence follows.
The Appellant lives with her parents and her fifteen year old brother in a municipality outside of a major municipality. She uses public transit to travel between the municipalities and relies on her vehicle in order to reach the transit terminal near her home. She also normally uses the vehicle to pick her brother up from school and to drive him to tutoring sessions and to sport activities.
Since the impoundment, the Appellant has been walking to and from the transit terminal near her home, a walk which takes approximately 30 minutes. However, she has been unable to pick her brother up from school. She testified that normally her brother would attend a gym or otherwise occupy himself between 4:00 p.m. when school ends and approximately 7:00 p.m. when she normally picks him up. Since the impoundment he has accompanied a friend to the friend’s home and waited there until someone, usually the Appellant’s father, has been available to pick him up. He has missed four tutoring sessions as a result and his studies are suffering. The Appellant further testified that her parents are reluctant to continue to ask the friend to accommodate her brother. The parents do not allow her brother to use public transportation.
Both of the Appellant’s parents own vehicles which they use for transportation to work, starting early in the morning. The Appellant testified that they both work six days a week, with her mother working shifts which can be set on short notice. There is public transportation in the municipality in which the Appellant resides. However, she stated that she does not believe that bus service is available that provides her with transportation to the transit terminal at the times she needs. She stated that she has looked at that option but not in detail.
The Appellant was in a car accident in late March. She suffered a back injury which she was initially able to successfully treat using over the counter pain medication. She testified that she saw her family doctor shortly after the accident. Since the impoundment, however, she has been suffering from anxiety which has exacerbated some breathing difficulties. As a result, she has again visited her family doctor who renewed a prescription for a bronchial inhaler. The Appellant testified that walking to and from the transit terminal has exacerbated her back injury and her physician has recommended that she attend therapy. The physician has not prescribed painkillers: the Appellant is treating her injury with over the counter medication. With respect to her current health, the Appellant tendered a copy of her inhaler prescription and a letter from a chiropractor at a rehabilitation centre which recommends that she leave work early in order to attend therapy for her injury (Exhibit #3). The Appellant has missed two days of work due to sick leave since the impoundment. She has no further doctors’ appointments scheduled.
She testified that she would like to see her doctor but cannot reach his office, an estimated 25 minute walk, easily without a vehicle. Asked by the Registrar’s Agent if she had considered using a walk-in clinic closer to her work, she replied that she preferred to see her own physician.
The Appellant further testified that she is unable to attend the recommended therapy for her back without the use of a vehicle. She stated that this is a busy time of year in her work and she is therefore reluctant to ask her employer to leave work early because it could create a negative impression and put her job at risk. Asked if she could arrange Saturday appointments and take public transit on a Saturday, or potentially attend rehabilitation therapy nearer her work during her lunch hours, she stated that she has not looked into these options in detail.
The Registrar’s Agent asked the Appellant if she had considered using a taxi in order to reach her physician’s office or the rehabilitation centre. The Appellant stated that she could not afford what she estimated to be a $10 to $15 taxi fare. Asked for details about her income and expenses, she indicated that her net income totals approximately $3,000 monthly. She itemized expenses of approximately $2,000 monthly, including the contribution she makes to the mortgage as a partial owner of the family home, and student loan, car and line of credit payments, car insurance and her monthly transit pass. She noted that after contributing an unspecified amount for groceries, the little she has left is used to pay for her brother’s expenses, for example, the tutoring.
The Appellant indicated that she is very concerned about the fees she would be required to pay the impound facility were she not successful in this appeal. She stated that she did not know where she would find the money and indicated that this was contributing to her anxiety which in turn is affecting her breathing.
Finally, the Appellant stated that she now realizes she made a mistake in allowing a family friend to drive her vehicle. She believed the friend to have a valid licence since she has seen him drive in the past and in fact, she believes he has a vehicle of his own.
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 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 is suspended 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 Appellant 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.
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.
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 Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant 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 impoundment period. Only if there is no alternative available may the Tribunal consider if the impoundment will result in a threat to the health or safety of an individual.
The Appellant testified that the loss of her vehicle has had a direct and negative impact on her health. She provided a letter from a rehabilitation centre which recommends that she attend therapy for her back, which she injured in a car accident. However, she did not provide a letter from her family physician to support her position that the loss of the vehicle has directly resulted in two health issues: increased stress requiring her to use a bronchial inhaler and, because she is walking approximately 30 minutes to and from the transit terminal, exacerbation of her back injury. While the Tribunal does not doubt that the Appellant is under considerable stress, it is not clear that this is solely due to the lack of use of a vehicle, as she also testified that it is her busy season at work and she is reluctant to ask for accommodation in order to attend therapy. Further, she indicated that her father had a business which failed and the family is now living in tight financial circumstances.
With respect to her financial situation, the Appellant provided information about her approximate monthly income and expenses. The Tribunal notes that the Appellant is contributing considerably to the household expenses and has a number of loan obligations but also notes that there was an unexplained gap between her income and expenses. The Tribunal is therefore not convinced that payment of an occasional taxi fare for medical appointments is not an option for the Appellant.
The Appellant indicated that accumulating impoundment fees are also a concern to her. However, the Tribunal cannot consider these fees in determining if exceptional hardship will result from the impoundment. For the Appellant’s information, the Act does provide for the ability of the Appellant to pursue these costs directly from the suspended driver.
With respect to alternatives, the evidence indicates that the Appellant’s household has two vehicles although these are used by the Appellant’s parents for their own transportation to work. However, the Appellant’s father has been able to assist by picking up the Appellant’s brother from a friend’s house where he has stayed given the Appellant’s inability to pick him up from school as she normally would. There is public transportation in the municipality in which the Appellant resides. The Appellant testified that although she has checked this option, she has not looked into it in detail. Rather, she appears only to have determined if there is bus service to the transit terminal at the time she wishes to arrive. She further testified that her parents would not allow her 15 year old brother to take public transportation until he is 16. As a result, the Appellant has chosen to walk to the transit terminal and to delay making appointments with her family physician or for rehabilitation therapy and her brother has missed some tutoring sessions.
The evidence indicates that the Appellant does have alternatives available to the use 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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: May 20, 2014