9240 v. Registrar of Motor Vehicles, 2014 CanLII 79516

Licence Appeal Tribunal

Appeal en matière de permis

DATE: 2014-12-16

FILE: 9240/MVIA

CASE NAME: 9240 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: 9240

-and-

Respondent: Registrar of Motor Vehicles

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: December 10, 2014

REASONS FOR DECISION

A hearing was held on December 10, 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”).

THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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 and motor vehicle in this appeal are as follows:

Owner: the Appellant

Motor Vehicle: 2003 Nissan, XTR (the “vehicle”)

Date of Appeal: November 27, 2014

A motion was heard on December 10, 2014, to consider the Appellant’s request for an extension of time to appeal the impoundment order of the Registrar affecting the Appellant’s motor vehicle. The motion was brought pursuant to section 7 of the Licence Appeal Tribunal Act, 1999.

On motions for an extension of time, four factors are to be considered in assessing the request:

• The existence of a bona fide intention to appeal;
• The length of the delay;
• Prejudice to the other party; and
• The merits of the appeal.

The Appellant’s vehicle was impounded on October 27, 2014, from which date the Appellant had fifteen business days to appeal (to November 17, 2014).

The Appellant filed a Notice of Appeal, by fax, on November 27, 2014, 8 business days after the expiration of the fifteen business day period in which to file an appeal.

The Appellant testified that her father died on October 22nd and she flew to Sault Ste Marie from her London, Ontario, home on October 27th and did not return until November 15th. The Appellant provided copies of her father's death certificate and her flight ticket to confirm these dates.

The Appellant stated that she only had one contact with the driver of the impounded vehicle, who is also her common-law partner of 20 years, and that she was aware of the impoundment on October 28th. However, she had no further contact with him, as he was also then in jail, and did not learn any more until she received the letter of impoundment on November 18th.

The Appellant testified that she immediately began her research and preparation in order to file her appeal. She acknowledged she was late in filing but emphasized the delay was due to her being away and not learning of the requirements until after her return.

The evidence indicates that the Notice of Impoundment, which was sent by the Ministry of Transportation, to the Appellant’s correct address, is dated November 10, 2014. The Appellant said she received the Notice on November 18th.

Mr. Kapur objected to the granting of an extension of time and argued that the Appellant was aware of the impoundment within a day of its occurrence and again, after her return home. He submitted that the Appellant had a responsibility to ensure the appeal was filed in a timely manner and questioned whether she had even intended to do so in any event.

The Appellant restated the fact that she was away for her father's funeral and emotionally focused on that event. She had one telephone conversation with her partner and then nothing further. She was not aware of the appeal process until she returned and then wanted to do it properly.

In review of the submitted evidence, the Tribunal accepts that once the Appellant became aware of her right to appeal, she had a bona fide intention to appeal. The Tribunal accepts the fact that her father's death and family involvement at that same time would have consumed her complete attention. The call with her partner, the day after the impoundment, and also learning he was in jail, can be seen to have added to what was an already difficult emotional time.

Considering the Appellant's circumstances, and the fact that she did not receive the official Notice of Impoundment until November 18, the Tribunal accepts the Appellant's testimony that she then needed a number of days to do her research and prepare proper appeal and motion request. Weighing the factors and inconsideration of the overarching principle of the ‘justice of the case’, the Tribunal therefore granted the Appellant’s motion for an extension of time and proceeded to hear the appeal.

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 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 pleads for the return of the vehicle on the ground that the vehicle is needed for medical appointments and for transportation when she returns to work full time.

The Appellant testified as follows:

• She was in a motor vehicle accident in 2013 and has had no income since then; she needs to attend a variety of medical appointments on schedules ranging from every two weeks to every 2-3 months; she also provided a list of healthcare providers she sees for her back pain and migraines.
• She does not have an alternate vehicle and friends are unable to help as they work during the day.
• She has applied for long-term disability benefits and is currently appealing a denial of the application.
• She provided financial data to show she has had to draw from long-term savings and now only has 2-3 months of reserve funds if she is unable to return to work; her partner (the driver of the impounded vehicle) no longer lives with her and she is having to manage all home and living expenses on her own.
• She acknowledged she could get to work by bus but would need to take a taxi home and at $32.00 per trip, it is not affordable; on one occasion, because it was "a good day" she walked to one doctor's appointment.

The Appellant referred to the following case law:

• 9149 v Registrar of Motor Vehicles ("9149") to support the claim that a bankruptcy possibility would have lasting impact;
• 8842 v Registrar of Motor Vehicles ("8842") how the loss of a vehicle would impact her ability to obtain care;
• 8897 v Registrar of Motor Vehicles ("8897") how the loss of her vehicle would have immediate impact on her ability to return to work and earn an income.

In cross-examination, the Appellant confirmed that she does not yet have a return to work date. Her short-term insurance company has asked her when she would be returning to work and if they could assist her in negotiating with her employer, Canada Post, to find work that would accommodate her physical needs.

Her family doctor had initially said it was ok for her to go back to work but on providing the doctor with information on how her employer tends to place "modified people" (with individual needs) on the midnight shift, when they return to work, the doctor told her he would give it some thought. In the meantime, she has not followed up with her doctor for his recommendation.

She has not worked since September 2013 because of her back pain and migraines and now, if she returns to work and is placed on the midnight shift, she will need her vehicle as she can get to work by local transit but the buses stop running at midnight. She does not know if the employer will accommodate her needs and give her a day shift until the time she starts back at work.

The Appellant said her common-law partner had previously worked intermittently as a contractor but is not working now and he is living with his brother who is serving as surety for him.

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 operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is under a life time suspension.

In closing submissions, the Appellant stated that the loss of the vehicle has had an immediate impact on her and resulted in financial hardship. She has used her limited reserve funds and now only has enough money for two months of living expenses. She does need to get back to work but cannot do so without her vehicle.

The Appellant said that she has no alternatives because:

• there are no friends available during the day to help;
• she has been "making do" for medical appointments so far;
• her employer puts modified people on midnight shift and she needs her vehicle for that shift;
• she has to follow up with her doctor to obtain an okay for her return to work date;
• her expenses have increased since her partner moved out.

The Registrar's Agent, Mr. Kapur, submitted that buses are available and the Appellant said she had walked to an appointment. The Appellant lives in London, which is an urban community with support service she can access and she has managed to get through the loss of use of her vehicle to the hearing date (the impound period concludes on December 11, 2014).

Mr. Kapur submitted that the Appellant appears to hold the key to getting back to work but has not followed up with her doctor. She could also negotiate some accommodation with her employer for a work schedule based on the transit schedule and, in consideration of her medical needs and capabilities.

Mr. Kapur said the Appellant has managed to keep all of her appointments.

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.

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 grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.

APPLICATION OF LAW TO FACTS

Section 10 of O. Reg. 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.

Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered.

In this case, the Tribunal notes the impoundment occurred on October 27, when the Appellant was away from home, and she did not return home until November 15, leaving 26 days for her to be without her vehicle. The impound period was to conclude on the day following this hearing.

The Appellant acknowledged that she has been able to use public transportation and also walked to an appointment. She provided no evidence of any missed appointments but only referred to the need for having her vehicle when she returned to work. The Tribunal therefore finds that the Appellant does have a reasonable option to the impounded vehicle for her present needs. At this time there is no return to work date and she acknowledged she has not followed up with her doctor for his okay to return to work.

The Appellant expressed her concern about her financial situation and that she has to return to work but failed to provide any evidence that she cannot return to work. She provided a list of medical practitioners she visits but there is no evidence to confirm their respective views about the Appellant's ability to return to work.

As the Appellant did not present any employer information, the Tribunal could not make a finding on whether or not the employer would accommodate her expressed need to work on a shift other than the midnight shift and whether there was any impact as a result of the vehicle being impounded.

The Tribunal also found influential, the Appellant's testimony that her doctor had originally said she could return to work but then said he would think about it when she said she did not have her vehicle and that she had not followed up with him.

The Appellant made reference to case law however these are found to be distinguished from the present matter by the fact that the Appellant in each of these cases was in a work situation which was threatened by the loss of use of their vehicle and, as follows:

• In 9149, the Appellant needed to transport tools and safety equipment; he had reportedly already filed for bankruptcy; and there was a letter from his employer advising that he required his own transportation to be eligible for work assignments.
• In 8842, the Appellant was working and the ability to continue daily work was interrupted by the loss of the vehicle; there was also evidence to confirm an inability to afford alternate means of transportation.
• In 8897, the Appellant needed a vehicle to transport tools for his employment or to be available for job interviews in possibly distant locations and his bicycle was not a suitable mode of transportation for those situations.

In summary, the Tribunal finds the Appellant's financial situation is in her control (meaning a return to work date) and no evidence to conclude that there has been a threat to the health or safety of the Appellant or any person ordinarily transported by the motor vehicle. Therefore, while the Tribunal may appreciate the Appellant's described circumstances, it concludes that on a balance of probabilities, the Appellant has not established 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

Simon Dann, Member

Released: December 16, 2014