8905 v. Registrar of Motor Vehicles, 2014 CanLII 46350

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-07-17

FILE:

8905/MVIA

CASE NAME:

8905 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:

Patricia L. Cassidy, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

July 8, 2014

REASONS FOR DECISION

A hearing was held on July 8, 2014, 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 “Act”).

Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for a total of 45 days from the date of impoundment.

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: 2005 Chev Imp (the “vehicle”)

Date of Appeal: June 17, 2014

There were no preliminary matters in dispute between the parties and the hearing proceeded.

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. The issue to be determined is whether or not the Tribunal should 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 confirmed that she is the owner of the vehicle and that she also owns a second vehicle which she claims is not roadworthy. In addition to the impounded 2005 Chevrolet, the Appellant owns what she described as a Dodge vehicle which is in need of new wheel bearings and brakes. Her evidence is that the Dodge was given to her by her step-father, about one year ago, but she does not use it to drive with her children because it is not safe. She does use it to drive to a variety store near her home to pick up necessities such as milk and bread, as required. Her evidence is that it would cost her approximately $500.00 to repair it which she is unable to afford at present.

The Appellant’s evidence is that she is a single parent, separated from the father of her 5 children, who range in age from 14 years to 5 years of age. She and the children reside together in a rural community which is part of the amalgamated City of Kawartha Lakes. Her parents reside about 15 kilometres away and so does her sister.

The Appellant stated that she was aware that the driver of the vehicle did not have a licence to operate the vehicle, and that his licence had been suspended due to drinking and driving. She stated that the driver is her boyfriend and that he had advised of his suspension when they first began dating about one year ago. She elaborated that it was her understanding that he was coming up to his 10 year anniversary at which time he would be in a position to apply, once again, for his driver’s licence.

The Appellant’s evidence is that the driver, her boyfriend, resides in Cambridge and works in various locations including Cambridge and, at times, in Sarnia. She stated that they do not live together but do spend alternate weekends together. On those weekends, the Appellant will travel to pick the suspended driver up on Friday evenings and return to her home, with him, until she drives him back for work on Sunday. On some weekends, if the suspended driver is working a 6-day week which includes Saturday, she will drive and spend that night with him. She elaborated that on those alternate weekends, her children spend the weekend with their father in a nearby community approximately 15 kilometres away from their home.

It is the Appellant’s evidence that, at the conclusion of the weekend of June 7, 2014, when it was time for her to drive her boyfriend back for work, one of her children was ill, her parents were away and she could not leave her ill child nor take her child with her when she was ill. Faced with the choice of her boyfriend taking her vehicle or missing work, she let him take her vehicle. Her evidence is that she knew he had no licence; she was aware of the circumstance of his being unlicensed to operate a motor vehicle but gave him permission to drive her car to work in the circumstances.

The Appellant stated the impoundment of her vehicle has been, “a huge inconvenience”. She elaborated that she has been dependent on her parents who work and reside about 15 minutes away from her. She stated that her nearest neighbour is about 3 kilometres away and she doesn’t really know them since she just moved to her present home in March of this year. She stated that, since her vehicle has been impounded, her parents have taken her grocery shopping 5 or 6 times. One of them will stay with the children while she goes into town since there isn’t enough room in her parents’ vehicle to carry her, the groceries and all 5 children. Her evidence is that she had a dental appointment in town for three of her children, which is about 15 minutes away and her sister drove them to it. So far, neither she nor any of the children have had to attend for other medical attention and she does not have any appointments scheduled for either herself or her children between now and July 22, 2014, when the period of impoundment will be completed. She is concerned about “what if” any of the children required medical attention however and expressed concern over her inability to get them to their doctor if the need arose.

Further, the Appellant stated that the children all take a school bus to school so they were able to complete the school year without disruption due to lack of transportation. She herself is unemployed and has been a stay-at-home mother for quite some time, pre-dating the impoundment of her vehicle. The children are involved in soccer but have made it to their games and practices with the assistance of others.

Lastly, the Appellant acknowledges that the impoundment will be completed in two weeks’ time, on or by July 22, 2014. She stated that she has done her best to get through the period of impoundment but she cannot afford the impound fee and nor can she afford to repair the second vehicle in her possession. These financial issues are of significant concern for her.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of impaired driving under the Criminal Code of Canada, three times, pursuant to which the driver’s licence of the driver was then under suspension for life. Specifically, the driver was convicted of impaired driving on January 5, 1995 and had his licence suspended for 12 months, to January 5, 1996. On June 4, 1997, he again was convicted of impaired driving and, on that occasion, had his licence suspended for a period of 24 months to June 4, 1999. On January 12, 2004, the driver was convicted of driving with more than 80 mgs of alcohol in his blood and, given that this was his third conviction for impaired driving, his licence was suspended for life. To date, his licence has not been reinstated.

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:

1. 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.

2. 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.

3. 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.

Section 55.1(27) of the Act provides that the owner of a motor vehicle that is impounded under s. 55.1 may bring an action against the person who was driving the vehicle at the time the vehicle was detained, to recover any costs or other losses incurred by the owner in connection with the impoundment.

The Appellant here appeals on the basis of section 50.2(3)(d).

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

Firstly, the evidence clearly establishes that the driver’s licence was under suspension at the time of the impoundment and, consequently, the impoundment was justified and correct.

As for the grounds of appeal, the Appellant’s evidence is that there are alternatives available to her and her family for transportation. Her evidence is that her parents, her sister and the school bus have all assisted in meeting the transportation needs of her and her children. Further, she does have a second vehicle which is sufficient to permit her to travel to a nearby convenience store for essential items when necessary.

Neither she nor her children have missed any appointments of any kind whether they are related to work, school, health or recreation.

The Appellant does have an alternate vehicle which could be made roadworthy but, on the evidence, the Appellant has managed, to date, without having to repair it.

There has been no economic hardship or loss for the Tribunal to consider. The impoundment of the vehicle has not caused any such loss. The Appellant is a stay-at-home mother; there has been no missed work, loss of employment or loss of education or training experience by either the Appellant or her children.

The Tribunal accepts the Appellant’s evidence that she has done her best to get through this period but that she cannot afford to fix her other vehicle or to pay the impound fees. The Appellant’s remedy for such costs and inconvenience does not lie with the Tribunal however. Pursuant to the provisions of section 55.1(27) of the Act, she might have a cause of action against the driver. On the evidence, he is employed.

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

Patricia L. Cassidy, Vice-Chair

Released: July 17, 2014