Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9131/MVIA
CASE NAME: 9131 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: Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant: Appellant’s friend, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: October 20, 2014
REASONS FOR DECISION
A hearing was held on October 20, 2014, to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 as amended (the “Act”). The Tribunal has reviewed the evidence and submissions and makes the following Order:
Pursuant to section 50.2 (5), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
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: Appellant
Motor Vehicle: 2007 CHEV UPL (the “vehicle”)
Date of Appeal: September 29, 2014
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 written submissions filed with the Tribunal in support of the appeal, entered as Exhibit # 1, explain that although the vehicle is registered to the Appellant, the address is not his, nor he is the main driver. According to the Appellant, he does help with the car payments but the vehicle is used by the mother of his children, who needs it to attend medical appointments for herself and the children, as she is diabetic and one of the children has a kidney ailment. The Appellant further contends that the vehicle is needed to transport the children to parental access visitations.
During the hearing, a friend of the Appellant identified herself as an “unpaid Agent " and informed the Tribunal that the Appellant was not present and that she would be attesting to the issues.
Testifying as a witness, the Appellant’s Agent disclosed that she is the person who normally uses the impounded vehicle and that the loss of the vehicle is creating exceptional hardship for her and her children. The witness maintained that being on social assistance, she cannot afford to take cabs to and from medical appointments.
According to the witness, she is a diabetic and she got an infection, being a single mother to four children, she could not use ambulance services as the children could not go with her.
The witness has rescheduled medical appointments for herself and the children, and stated that she has no friends or relatives in the town who can help her. The witness explained that if she asks her mother for assistance, she has to pay her which she cannot afford.
In cross-examination, the witness explained that the Appellant is the father of her two younger children. He lives near her but is not really affected by the loss of the vehicle nor is he helping her with the expenses, because he is trying to save to get the vehicle out of impoundment.
As far as groceries, the witness affirmed that she had to walk three hours to get groceries, and that she had to pay her mother to drive her to buy formula for the baby. The witness stated that she has a food market within walking distance but she does not like shopping there as in her opinion it is too expensive.
With respect to medical appointments, the witness testified that she has rescheduled some appointments but has not thought about what to do if she does not get the vehicle back. Nonetheless she admits to having enough medication to last until the end of the month.
According to the witness, there is 911service available in the area.
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 police 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 of Fail To Provide Breath or Blood Sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 31, 2015.
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.
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’s Agent emphasized that the primary reason for the appeal was to have the car returned as the loss is causing a lot of stress. According to her, the money is secondary and she is willing to give the money that the Appellant has saved to cover some of the expenses. The Appellant’s Agent also promised to keep the keys locked up so that the Appellant will not get his hands on them again.
In the 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.
As far as economic hardship, the Registrar’s Agent argues that the witness has not lost employment as she is on assistance; she has been able to get about since the impoundment with her mother’s help, therefore it would appears that there are alternatives modes of transportation available. The witness stated that although she has and might have to reschedule some medical appointments, none have been missed. Further it appears that she has been able to acquire both formula for her baby as well as enough medication for the older children. As far as groceries, the Registrar’s Agent contends that she has a food market within walking distance but has chosen not to use it.
The onus is on the Appellant to establish the grounds of appeal as provided in section 50.2(3) of the Act.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
This case differs from the norm, in that not only is the suspended driver the owner of the vehicle, but he is not the person normally transported by the vehicle, and therefore affected by the loss.
The Tribunal heard no evidence from the Appellant at all, and the only evidence from him is the statements in Notice of Appeal in support of the witness’s perceived hardship.
The Tribunal is left to consider the evidence of the witness as the person affected by the loss of the vehicle.
Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. The Tribunal does note that there is no evidence of a threat to health and safety. In the event of a sudden health issue arising, there is 911 service available to the witness.
The Tribunal heard evidence that, albeit with difficulty, the witness, i.e. the person affected by the loss of the vehicle, has been able to manage. She was able to reschedule appointments and obtain enough formula for her baby with the help of her mother. There is a food market within walking distance thus neither the witness nor her children need to go without the necessities of life. As such, the Tribunal finds that alternate transportation is available, and the Tribunal’s enquiry must come to an end with the Applicant’s defence of exceptional hardship under section 50.2(3)(d) of the Act failing.
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
Dr. Antoine A. Aouad, Presiding Member
Released: October 31, 2014