9181 v. Registrar of Motor Vehicles, 2014 CanLII 86267

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-18

FILE:

9181/MVIA

CASE NAME:

9181 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:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

November 12, 2014

REASONS FOR DECISION

A hearing was held on November 12, 2014, in Toronto 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: The Appellant

Motor Vehicle: 2009 MAZD M3I (the “vehicle”)

Date of Appeal: October 21, 2014

By way of preliminary matters, the Registrar’s Agent sought to introduce a document submitted to Tribunal on November 12, 2014. As the Appellant raised no objection, the document was entered as an exhibit.

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 #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

A summary of the Appellant’s evidence follows.

The Notice of Appeal was entered as Exhibit #2. In the Notice of Appeal, the Appellant stated that loss of the impounded vehicle would result in exceptional hardship in that the vehicle is need both for work and to allow the Appellant, who is pregnant to attend doctor’s visits. According to the Appellant, public transportation is available but inconvenient. In her Notice of Appeal, the Appellant quoted section 287 of the Criminal Code of Canada.

During the hearing, the Appellant reiterated that she has been having a very hard time since the impoundment. The Appellant testified that she has missed work and doctor’s appointments, and used up her paid sick leave. According to the Appellant, it takes her about an hour to an hour a half to get to and from work by public transportation.

The Appellant described how she allowed her husband to drive because she was sick in bed and her stepdaughter needed to be picked up.

The Appellant affirmed that she missed two precautionary risk tests for her pregnancy and is afraid she will miss the rescheduled one, as well.

In cross-examination, the Appellant confirmed that both she and her husband are permanently employed, and that she has missed two medical appointments but was able to take a cab to take a needed ultrasound, and the bus to see her doctor. The Appellant has rescheduled her precautionary risk test to November 20, 2014. Since the vehicle will not be released until November 25th, the Appellant speculated that she might have to take the day off work, as it will take a long time to get to the hospital. The Appellant attested she feels that the missed appointments have not put the unborn baby at risk. According to the Appellant, she used all her sick leave and is reserving the unpaid leave for emergencies.

The Appellant confirms that both the vehicles registered to her address belong to her mother and father who both work late. According to the Appellant, although her parents’ schedules are “pretty set”, but on days when the Appellant was late for the bus, one of her parents drove her to work.

The Appellant stated that personal needs such as groceries have not been a problem as there is a grocery store within walking distance.

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 MTO records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 8, 2015.

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:

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.

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 Appellant 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. 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 asserted that she is having a difficult pregnancy and that the loss of the vehicle has added stress as she fears that she will lose her baby. The Appellant explained that she quoted section 287 (1) of the Criminal Code of Canada, in the belief that it would strengthen her argument for exceptional hardship.

In a 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 exceptional hardship, the Registrar’s Agent pointed out that in light of the Regulation 638/98, the issue of alternative transportation must be considered, and not only is there a large network of public transportation available in the area but also there are two other vehicles registered to the Appellant’s address and two licensed drivers in the house who have previously assisted the Appellant by taking her to work.

According to the Registrar’s Agent, there is no health and safety issue, as the Appellant herself chose to miss the appointments as she felt her baby was not at risk, and she opted to save her unpaid leave.

The Registrar’s Agent pointed out that there has been no loss of income, due to the impoundment.

The Tribunal reviewed section 287 (1) of the Criminal Code of Canada, as cited by the Appellant, which prescribes that:

287. (1) Everyone who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.

As this section clearly deals with procuring an abortion, the Tribunal finds it is not relevant to these proceedings.

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:

10. (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…

Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Given the evidence, there is no doubt that there are other vehicles registered to the Appellant’s address and that the Appellant has been given drives by the other adults at that address. Further, she does have access to public transportation, though not as convenient for her.

With respect to health and safety, the Tribunal notes that by the Appellant’s own admission, the Appellant’s unborn baby does not appear to be at risk.

Thus, despite the Appellant’s pregnancy and health issues, with alternative transportation being available to the Appellant, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.

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: November 18, 2014