Licence Appeal Tribunal
Licence Tribunal Appeal d'appel en Tribunal matière de permis
FILE: 8836/MVIA
CASE NAME: 8836 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: Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: June 9, 2014
REASONS FOR DECISION
A hearing was held on June 9, 2014, in Toronto to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 as amended (the “Act”). The Tribunal has reviewed the evidence and submissions and makes the following Order, and these are the reasons:
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: 2002 MERZ CL2 (the “vehicle”)
Date of Appeal: May 21, 2014
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, all as provided in sections 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’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. The Notice of Appeal states that: the officer should have allowed her to drive home, since she is a licenced driver and was in the car at the time. The Appellant states that she is unable to afford the cost of impoundment and has had to apply to Ontario Works due to her financial situation.
During the hearing, the Appellant testified that she did not know the suspended driver’s history. The Appellant asked the suspended driver to take her to the airport, to fly over to visit her mother.
The Appellant related a conversation she had with the officer, wherein she was told at the time of impoundment, that she could call the towing company and go and pick up the car once it arrived at the impoundment site. The Appellant stated that she got the money she was told would be necessary to pay the fees, however, upon arrival at the impoundment site she was told the car was impounded for 45 days. According to the Appellant, she does not have nor will have the money to pay the total costs of the impoundment, and yet the car is needed to get around and look for a job.
In cross-examination, the Appellant affirmed that the suspended driver is her “support” and that she felt bad about what happened, as she had been the one who asked him to drive her to the airport.
The Appellant testified that she lost her job in April. The Appellant has signed up with Access Research, but is only given work if work is available. According to the Appellant work is assigned on a first come first served basis.
The Appellant explained that she applied for Ontario Works before she went to visit her mother for two weeks, but it appears that the paperwork was lost, and will have to reapply.
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 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 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 until January 15, 2015.
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.
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
In closing, the Appellant sated that she needs her car returned to be able to pursue her career in the hair styling industry. The Appellant asserted that since she lives outside Toronto, where most of the ethnic hair salons are located, she needs the vehicle to go about looking for work.
The Appellant further stated that she felt tricked by the police, because the officer told her that she could get her car back the same day.
With regard to exceptional hardship, the Registrar’s Agent noted that the loss of the Appellant’s job occurred not as a result of the impoundment, but prior. Further, the Appellant was able to work three shifts before leaving for Jamaica, thus she was not able to look for work. Thus, according to the Registrar’s Agent, there was no loss that was significant and lasting, as there was no employment lost nor was employment being sought.
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. Other than public transit, there are no other modes of transportation available to the Appellant, thus the Tribunal may consider whether any losses incurred by the Appellant are significant and long lasting. In reviewing the evidence it is clear that the Appellant lost her job prior to the impoundment, nonetheless she was able to earn some income prior to leaving the country to visit her mother. Thus, the Appellant was unable to satisfy the Tribunal that a loss of income that could be considered significant and long lasting has resulted, and as such, the Tribunal’s enquiry must come to an end and the Appellant’s claim of exceptional hardship under section 50.2(3)(d) of the Act must fail.
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: June 18, 2014