Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8842/MVIA
CASE NAME: 8842 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
8842 Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Self-Represented For the Respondent: Sonia De Santis, Agent
Heard by teleconference: June 10, 2014
REASONS FOR DECISION AND ORDER
A hearing was held on June 10, 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 “HTA” or the “Act”).
THE TRIBUNAL RULED TO ORDER THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.1(3) of the HTA.
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, GMC, ENV (the vehicle”) Date of Appeal: May 21, 2014
ISSUES
Based on the Notice of Appeal and the Appellant’s testimony at the hearing, the issue in this appeal is whether the loss of the vehicle will result in exceptional hardship as provided in section 50.2(3)(d) of the Act.
EVIDENCE FOR THE APPELLANT
A summary of the evidence of the Appellant is as follows.
The Appellant confirmed the details contained in her Notice of Appeal ("NOA"). She is a personal support worker ("PSW") providing private home care for seniors in a smaller Ontario municipality. Her main client is an 87 year old senior ("G") who has medical conditions and limited mobility. She has worked with G for the past two years. In addition, she has clients who regularly call and depend on her to take them to their appointments or other commitments. The Appellant has a limited income and provided a copy of her income tax statement to confirm her annual income of $7,221. She is a single parent with 2 daughters aged, 8 and 17, who are both still in school.
The Appellant said the vehicle impoundment occurred when she and her boyfriend ("SN"), were having an argument while she was driving to their destination. SN was the individual cited by the police as having care and control of the vehicle at the time of impoundment.
She said SN was drunk and being abusive. She was aware he was a suspended driver and she would not let him drive. When she asked him to get out of the vehicle, as a result of their argument, he refused and she pulled the vehicle over to the side of the road whereupon she got out of the vehicle. The Appellant explained she had done personal counselling sessions following a previous abusive relationship and learned the best thing she could do in that kind of situation was to walk away from the argument rather than be a participant.
She acknowledged that when she brought the vehicle to a stop at the side of the road and got out, she left the key in the ignition and the motor running. There was a trailer attached to the vehicle and because it was parked at an angle, out from the curbside, the vehicle attracted the attention of a passing police vehicle.
The Appellant said she was 50-60 feet away and could not confirm whether the police claim, that SN had jumped out of the driver's seat when they approached the vehicle, was true or not. It was her belief this was not true because she left SN in the passenger seat and it was only a couple of minutes from the time she parked, got out, walked away, and then started walking back.
The Appellant said the police arrested SN and left her at the side of the road. She was able to contact her elderly mother who was able to come and pick her up. The Appellant had to give her mother $10 for the pick up and ride home. The Appellant said that while her mother was able to come and get her from the roadside, her mother was not in a position to provide her with any other kind of transportation alternative.
The Appellant stated the loss of her vehicle has impacted her client G, who is dependent on her and their relationship. While she has been able to travel by bus to G's home and provide home care for him a few times , she has not been able to take him to any outside commitments and this has resulted in a loss of days worked and income earned. She acknowledged these appointments have been rescheduled into (late) June. If she is unable to recover her vehicle, she will lose her employment with G.
The Appellant said she tries to help the elderly and charges her clients very minimal amounts. As a result, her income is very limited and she has no reserves. She has had to sell two snowmobiles in order to pay her rent. She has also been to the local food banks for food supplies because of the loss of income. She is afraid of not being able to get any work and having to go on welfare.
The Appellant confirmed there is 911 service in her area, and there are no health issues for her or her children, both of whom are able to get to their schools and do not depend on her for transportation.
EVIDENCE FOR THE REGISTRAR
The documents tendered by the Registrar and admitted into the record on consent 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;
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 his driver’s license suspended on December 19, 2018, due to a conviction on a charge of driving while disqualified under the Criminal Code of Canada pursuant to which the license of the driver was suspended until August 14, 2014.
The Registrar called no other evidence.
In closing summary, the Appellant reviewed the evidence she had already given.
The Registrar's Agent asked the Tribunal to confirm the impoundment, submitting that the appeal must fail because the Appellant was aware SN was a suspended driver and that she walked away leaving the vehicle and key in the care and control of SN. The Appellant had access to public transit and was able to attend at G's home and while he had missed various appointments, they were rescheduled and G did have access to taxi transportation.
The Registrar's Agent submitted there was no threat to the health or safety of the Appellant or her client and while she has lost some wages, she has used the bus and had some employment.
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 sections 50.2(3)(d).
On the exceptional hardship issue, 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. The section also 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
The Tribunal finds that on a balance of probabilities, the Appellant has proven her case on the ground of exceptional hardship.
The evidence presented by the Appellant and found by the Tribunal to confirm exceptional hardship include the facts that (1) the Appellant has limited income as proven by her income tax statement; (2) the impact of the loss of her vehicle has been immediate in that her income is found to be insufficient to allow her use of taxis or a rental vehicle; (3) the Appellant's reference to her mother not being able to provide a transportation or vehicle alternative was not disputed and therefore found as fact; (4) the Appellant's client is an 87 year old person dependent on the relationship and trust established with the Appellant and the loss of that relationship could have a burdensome impact on that person.
The Appellant testified that the loss of use of her vehicle has immediately impacted her ability to earn her full income and despite continuing some work by using transit, she has already sold some possessions to pay her rent. She has also had to rely on the food bank for food supplies and expects that she would have to turn to welfare support if she were unable to recover her vehicle.
In summary, the Tribunal finds that on a balance of probabilities, the Appellant's loss of her vehicle has led to exceptional hardship for herself personally and immediately.
DECISION
After considering the evidence, and pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the Applicant’s motor vehicle, on the ground of exceptional hardship and directs the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: June 13, 2014