Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8897/MVIA
CASE NAME: 8897 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
8897 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine A. Aouad, M.D., Member
APPEARANCES:
For the Appellant: Appellant’s Sister, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: July 3, 2014
REASONS FOR DECISION
A hearing was held on July 3, 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”).
After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal ordered the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on July 4, 2014, with reasons to follow.
These are the reasons for the Tribunal’s Order.
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: 1997 CHEV L/S (the “vehicle”)
Date of Appeal: June 12, 2014
By way of preliminary matters, the Appellant’s Agent informed the Tribunal that the Registrar’s package had not been received. The Registrar’s Agent detailed the information contained in the Registrar’s package, and the Appellant’s Agent agreed to proceed with the hearing.
All documents were entered into evidence as exhibits with the consent of both parties.
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.
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 #2. In the Notice of Appeal, the Appellant states that he lives in an area where there is no public transportation available and although he is on Ontario Works, he needs the vehicle to go for training when required, to follow up on job leads and to attend interviews. In addition, the Appellant also does some landscaping jobs for his landlord in order to avoid a rent increase. The Appellant asserts that the vehicle is needed for work, and that the loss of the vehicle is causing family upheaval and exceptional hardship.
The Appellant filed as Exhibit #5, documents attesting to the Appellant’s current financial situation, rent paid and job searches.
During the hearing, the Appellant testified that the vehicle was wrongly impounded as the driver had a valid driver’s licence. The Appellant attested that the letter from the Ministry of Transportation of Ontario informing of the suspension was received the day after the incident when the vehicle was impounded.
The Appellant’s Agent was sworn in and testified as a witness. In her testimony, the witness reiterated the comments made in the Notice of Appeal, explaining that the Appellant is having difficulty in going to job interviews or training as he lives in an area where there is no public transportation available. Further, according to the witness, the Appellant needs the vehicle to transport lawn mowers and other equipment necessary to work as a landscaper, at the landlord residence, so that he can maintain his rent at a minimum.
According to the Appellant, he was not aware that his son’s licence was under suspension, and allowed him to drive the vehicle.
In cross-examination, the Registrar’s Agent questioned the Appellant as to how he has been getting around. The Appellant’s response was that he has been able to get groceries and check the temp agencies for jobs by using his bicycle, and so far he has not had a call. Nonetheless, he might get a call at any time and need to go out of town.
The Appellant testified that he is still on Ontario Works and that he has had to use his RRSPs for the past two years in order to continue to meet his expenses.
As far as the rent is concerned, the Appellant testified that the landlord is expecting him to work on the grounds at his home, in order to avoid a rent increase. The Appellant stated that although the landlord likes his work, he is not certain how long the landlord will wait for him.
The Appellant stated that his total monthly expenses are approximately $1,200.00 per month.
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 of Ontario 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 regarding the impoundment;
Copy of the Ministry of Transportation of Ontario records indicating that the driver at the time of impoundment had been convicted of Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 19, 2014.
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.
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.
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 ground 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’s Agent emphasized that the Appellant borrows money when he can, but the vehicle is essential in order to allow the Appellant to survive financially.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
With respect to the vehicle being stolen, given that the Appellant gave the keys to his son to drive the vehicle, it cannot be argued that the vehicle was stolen. According to the Registrar’s Agent, the ground of due diligence does not apply in that the Appellant did not ask to see his son’s licence nor did he make any attempt to verify the validity of the licence.
As far as exceptional hardship, the Regulation requires that no alternative modes of transportation be available, and in this case, the Registrar’s Agent submits that there is public transit in the city where the Appellant lives and works. Further, according to the Registrar’s Agent, the Appellant also uses his bicycle to get around.
Addressing the issue of financial hardship, the Registrar’s Agent pointed out that the Appellant’s financial situation has existed for a while and that he has been able to make use of his RRSPs.
Also, the Registrar’s Agent submitted that rent has been paid, and what may happen in the future is pure conjecture and cannot be considered, and, since the Appellant is on Ontario Works, he has lost no income. The Registrar’s Agent submitted that should the Appellant need to go for an interview during the impoundment period, the Ontario Works program will assist the Appellant in getting to the interview. However, there was no evidence submitted in support of that submission.
According to the Registrar’s Agent, there are no health or safety concerns.
The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3) of the Act.
As referenced above, section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship and only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Given the evidence that the Appellant only has the use of a bicycle to get around, the Tribunal does not consider that as an alternate mode of transportation when the Appellant is required to transport his lawnmower and other tools, in order to carry on the job he is currently doing for his landlord. An inability to perform this job impacts the Appellant in a significant way as it directly affects the amount of his rent.
Thus, the Tribunal when considering the Appellant’s financial situation, albeit the current financial situation is pre-existing, concludes there is no doubt that the loss of the vehicle will have an immediate, significant and long lasting effect. Without the vehicle, the Appellant is not able to perform the job that will keep his rent at a level he can afford.
The Tribunal finds that the loss of the vehicle will definitely aggravate the Appellant’s dire current financial situation and finds that the criteria for exceptional hardship under section 50.2(3)(d) of the Act has been met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine A. Aouad, M.D., Member
Released: July 14, 2014