Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8875/MVIA
CASE NAME: 8875 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
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Nives Montano, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia DeSantis, Agent
Heard by teleconference: June 20, 2014
REASONS FOR DECISION
A hearing was held on June 20, 2014, at Toronto, Ontario, by teleconference, to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. 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 Hyundai Elantra (the “vehicle”)
Date of Appeal: June 3, 2014
ISSUES
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 and the suspended driver’s affirmed evidence follows.
The Appellant is a resilient senior who resides in an Ontario housing complex with her husband, who is also a senior. The Appellant’s husband is also the suspended driver at the time the vehicle was impounded. Their income consists of CPP, old age security and a work pension.
The Appellant is aware of her husband’s life suspension. She usually keeps the keys to her vehicle on the wall in the kitchen, but on this occasion, they were in her purse.
The Appellant’s husband testified that on the morning the vehicle was impounded, the Appellant was in bed, not feeling well and in extreme pain. In trying to be a “good Samaritan”, the Appellant’s husband took the keys from the Appellant’s purse and drove to “a plaza” to purchase back pain medication, milk and some groceries “before anyone was the wiser”. The Appellant’s husband advised the Tribunal that he “should have taken the bus”; he “didn’t realize the consequences”; he is “the one to blame” and understands he was “breaking the law”.
The Appellant was unaware that her husband had taken her keys. The Appellant’s husband was stopped by police; the vehicle was impounded and he was driven home by police.
When the Appellant’s husband explained to the Appellant that her vehicle was impounded, she became very emotional and experienced severe chest and back pains and thought she “was going to die”. 911 was called and an ambulance was dispatched to their home. She was taken to the hospital where she remained overnight.
The Appellant and her husband have, in the past, relied on a neighbour for assistance. This neighbour and the Appellant’s husband picked up the Appellant from the hospital. Three days later, the same neighbour drove the Appellant to the doctor’s office for a follow-up visit after her medical episode. The neighbour was financially compensated. This neighbour has also picked up medication for her in the past. As well, other neighbours and friends within the building have purchased occasional groceries for the Appellant and her husband.
The Appellant has a daughter who lives a significant distance and in a different community than that of the Appellant. She is aware of the impoundment and has assisted and would, according to the Appellant, if the need arose, assist with transportation over a weekend since she works during the week.
The Appellant was of the view that “the car was stolen from me” by police for having it impounded.
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 for life.
The Appellant confirmed that she filed her appeal on the grounds of exceptional hardship when asked by the Registrar’s Agent.
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 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.
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
For this appeal to be successful, the first and foremost criterion the Appellant must demonstrate is that there is no alternative means of transportation available to her.
The Appellant testified that she was aware that her husband was suspended from driving a vehicle for life.
She testified that her daughter, friends and neighbours have helped the Appellant by purchasing groceries for her or driving her to doctor’s appointments and/or to run various errands. If her friends and neighbours were not financially compensated, the Appellant would either cook them a meal or give them a bottle of wine. Public transit is available but the Appellant is of the view that it “is expensive”.
The Appellant had breast cancer surgery about one year ago. She also has other ailments which pre-existed the vehicle’s impoundment. She had one medical appointment which was cancelled and rescheduled. Her neighbour drove her to and from the appointment for a fee.
There is no threat to the health or safety as her community is 911 accessible and a hospital is within her community.
The Tribunal finds that the Appellant has not established exceptional hardship as set out in sections 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
Nives Montano, Presiding Member
RELEASED: June 27, 2014