Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9149/MVIA
CASE NAME: 9149 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.
9149 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: October 28, 2014
REASONS FOR DECISION
A hearing was held on October 28, 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 October 29, 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: 2003 NISS PFI (the “vehicle”)
Date of Appeal: October 8, 2014
By way of preliminary matters, the Tribunal first dealt with the fact that the Appellant did not receive the disclosure package forwarded by the Registrar. The Tribunal adjourned for 10 minutes to allow the Registrar’s Agent to explain the contents of the disclosure package.
After speaking to the Registrar’s Agent, the Appellant agreed to proceed with the hearing.
The Registrar’s Agent submitted the police officer’s notes requesting that they be entered as evidence. The Appellant had no objection.
The Tribunal also dealt with a Notice of Motion filed by the Appellant to extend the period for filing the appeal beyond the prescribed 15 days. The Appellant states in his motion, and reiterated in reply to the Registrar’s Agent, that the reason for the delay was that he did not obtain the information how to appeal on time. The Appellant claims that his several calls to the police officer for information went unanswered, and he had to find out for himself how to proceed with the appeal. According to the Appellant, a friend eventually told him that he could obtain the information online. Since he does not own a computer, he used the computer at his girlfriend’s home. The Appellant stated that he called the Tribunal and had appeal information sheets sent to him.
The Tribunal believes that the Appellant acted in good faith and made diligent efforts to find out how to appeal the impoundment. The delay was due to his lack of knowledge of the process, coupled with the fact that he had not been provided with a copy of the Notice of Impoundment, thus granted the motion.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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
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 #1. In the Notice of Appeal, the Appellant states that he is the sole supporter for an adult son who is unable to work. The Appellant asserts he has filed for bankruptcy. According to the Appellant, the vehicle is needed for work, and the loss of the vehicle is causing exceptional hardship.
In addition to the Notice of Appeal, the Tribunal received a letter from his employer, a roofing company, Gentech Roofing dated October 23, 2014, stating that without a vehicle the Appellant “is unable to get any work assignments” and that since the impoundment, the Appellant “has lost many opportunities to work…”
The Appellant testified that he was unaware his son’s driver’s licence was suspended when he asked him to drive as he was not feeling well. The Appellant explained that he had been on sick benefits and just bought this vehicle in order to work. Without the vehicle, the Appellant stated that he will not be able to continue to work at his job, and will not be able to pay his rent and may lose his apartment which he shares with another “fellow.”
In cross-examination, the Appellant confirmed that his employment sick benefits ran out in August, and is unable to apply again until he works enough hours. As to how he has been getting around, the Appellant attested that he was able to work only 50 hours since the impoundment, completing jobs that had already been set up, and he got a ride from his girlfriend.
The Appellant asserted that there are jobs available, but he is not eligible to apply without a car. The vehicle is needed to carry the tools safety equipment used on job sites as well as materials. The company the Appellant works for cannot help, as their trucks are used for their own personnel.
The Appellant explained that his work hours are inconsistent, thus his income is irregular. Nonetheless, his expenses have increased as he is still paying the Bankruptcy Trustee. When the Registrar’s Agent suggested that the Appellant consider renting a vehicle, the Appellant explained that since he has filed for bankruptcy he is unable to obtain credit which he would need to rent a vehicle.
According to the Appellant, he doubts he can get a loan from his family to pay the impoundment fees, and is considering taking the plate and leaving the car with the impoundment facility.
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 MTO records indicating that the driver at the time of impoundment had been convicted of Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 18, 2014.
The Registrar did not call any witnesses.
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.
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.
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
In closing, the Appellant stated that he only has enough money to pay rent at the end of October, and emphasized that without the vehicle he will be unable to work, and therefore, will be unable to pay rent in November.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. The Registrar’s Agent maintained 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.
The Registrar’s Agent argued that the Appellant’s credibility is put in doubt, given his inconsistency with respect to whether or not he knew of his son’s licence suspension. Thus, the Registrar’s Agent maintained that due diligence was not exercised.
As far as exceptional hardship, the Regulation requires that no alternative modes of transportation be available, and in this case, the Registrar’s Agent argued that the Appellant was able to work and there is no documented information as to why he cannot find a job without a vehicle. According to the Registrar’s Agent, the Appellant has not attempted to mitigate his losses, in that “it is hard to swallow” that he could not have tried to borrow some money from his friends to rent a vehicle.
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. The Regulation, in its wording at section 10(4), imports an element of reasonableness, which the Tribunal assesses in making its determination: ‘every reasonable option’ must be interpreted in the context of each particular set of facts before the Tribunal.
Although the Appellant was able to obtain rides from his girlfriend for a few days, the Tribunal accepts the Appellant’s testimony that the jobs had already been set up and that the Appellant only completed them. The Tribunal does not consider the Appellant’s girlfriend’s vehicle as an alternate mode of transportation as his girlfriend’s car is not able to transport the tools required for the jobs.
The loss of the vehicle has impacted the Appellant in a significant way as substantiated by a letter from his employer confirming that the Appellant has in fact lost work opportunities. As noted in this letter, the Appellant ‘needs his own vehicle with a trailer hitch…without this he is unable to get any work assignments.”
The Tribunal, when considering the Appellant’s financial situation, notes that albeit the current financial situation is pre-existing, 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 unable to perform his job and will not be able to meet his expenses.
The Tribunal finds that the loss of the vehicle will definitely aggravate the Appellant’s 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 ordered the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Presiding Member
Released: November 4, 2014