Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8939/MVIA
CASE NAME: 8939 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: July 29, 2014
REASONS FOR DECISION
A hearing was held on July 29, 2014, at Toronto 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 Applicant’s motor vehicle will remain detained at the impound facility for 45 days.
PRELIMINARY ISSUES
The Appellant failed to appear at the time scheduled for the hearing. The Tribunal recessed the hearing and staff was able to contact the Appellant by telephone. The Appellant advised staff that he was unaware of the requirement to appear in person. With the consent of Mr. Kapur, the Tribunal allowed the Appellant to participate in the hearing by teleconference.
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: 2012 Honda FB2 (the “vehicle”)
Date of Appeal: July 10, 2014
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, 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
The Appellant is the suspended driver in this case. He testified that his driver’s licence was suspended on March 31, 2014. He has since completed the remedial “Back on Track” program within 90 days but does not have the funds required to pay for an ignition interlock device in order for his licence to be reinstated. His vehicle was impounded when he and his wife and two children were driving out of town. His wife was driving the vehicle but because she began to feel unwell, he decided to drive rather than prolong the trip, particularly since his children had been up early and confined to the vehicle for a considerable length of time. As a result of the vehicle being impounded, the family had to travel by train to its destination, at considerable unanticipated expense. The Appellant acknowledged that driving the vehicle was the wrong thing to do and apologized. He also noted that the vehicle was towed to an impoundment facility a considerable distance from his home and that both reaching this facility by train and paying the impoundment fees would be a financial strain.
The Appellant and his wife have subsequently separated. The Appellant cited the financial strain the impoundment has caused as a reason for the separation. The Appellant now lives in a major municipality. His wife and two school aged children have remained in the family home in a smaller municipality.
The impounded vehicle was used primarily by the Appellant in order to reach his job in the major municipality in which he now lives. A second family vehicle was shared by his wife and his adult daughter who lives near the family home. That vehicle is now being used by the adult daughter because she has a young child to transport. The Appellant’s wife has rented a vehicle.
The Appellant has been relying on public transportation and on rides from friends since the impoundment of the vehicle. His days off work fall in the middle of the week and the Appellant takes care of his children on these days. A friend/co-worker drives him to the family home and he then lives there to take care of his two younger children while his wife is at work. A friend/co-worker drives him back to his work after his days off and his children are then taken care of by his adult daughter. The Appellant lives at his new home while he is working. While the Appellant is taking care of his younger children, he uses various means of transportation to ensure they reach where they need to be. He has used public transportation as well as ridden bikes with the children.
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 Applicant 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 Applicant 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 under the Criminal Code of Canada of driving with a blood alcohol concentration exceeding 80 mg pursuant to which the driver’s licence of the driver was then suspended to March 31, 2015.
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 Applicant here appeals on the basis of sections 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.
- 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
With respect to the issue of exceptional hardship, Section 10 of Regulation 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.
In this case, the Appellant was the suspended driver and the impounded vehicle was used primarily for his own transportation. The Appellant testified that he does have an alternative to the impounded vehicle; he has had rides from co-workers and has used public transportation. Further, even if there were no alternative, section 10(3) of Regulation 631/98 specifically precludes the consideration of a financial or economic loss by the suspended driver. The Tribunal therefore cannot consider the impact of the costs associated with releasing the vehicle from the impound facility. Regulation 631/98 also precludes the Tribunal from considering the impact of a financial or economic loss by the suspended driver on other individuals transported by the vehicle.
The evidence indicates that the Appellant does have alternatives available to use of the impounded vehicle, and therefore does not establish 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,
Presiding Member
RELEASED: July 30, 2014