Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-08-05
FILE:
8946/MVIA
CASE NAME:
8946 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:
Nives Montano, Member
APPEARANCES:
For the Appellants:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
August 1, 2014
REASONS FOR DECISION
A hearing was held on August 1, 2014 at Toronto, Ontario, 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 “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. 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: 2002 Mazda Tribute (the “vehicle”)
Date of Appeal: July 14, 2014
All documents were entered into evidence as exhibits with the consent of both parties. The hearing proceeded.
ISSUES
As set out in the Appellant’s request for hearing, 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 affirmed evidence follows.
The Appellant is a mother of a 4 year old child. She was temporarily laid off in April 2014, but the business closed its doors on July 8, 2014. She is currently collecting unemployment insurance as well as looking for new employment.
The Appellant’s boyfriend is the child’s father and the suspended driver at the time the vehicle was impounded. He is currently employed and walks to work.
On the day the vehicle was impounded, the family spent the day at the beach. Unfortunately, the Appellant had sunburnt her back. While she was putting her son to bed, the suspended driver took her vehicle so that he could purchase some Advil for the Appellant as well as some cigarettes for himself. The vehicle was stopped by police due to a faulty headlight. The suspended driver was charged and the vehicle impounded.
By her own admission, the Appellant was aware of her boyfriend’s suspension but she “didn’t know the severity of the situation.” When asked to explain, she advised the Tribunal that the suspended driver “hardly drove her vehicle” but did so “on occasion.” She thought that if he were ever caught driving a vehicle by police that the suspended driver would only receive a fine. She was unaware that her vehicle could be impounded. With this evidence, the Tribunal did not need to consider the possible ground of the vehicle having been “stolen” or the Appellant having exercised “due diligence” to determine the status of her boyfriend’s driver’s licence.
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 Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
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.
The Appellant here appeals on the basis of section 50.2(3)(d).
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:
- 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.
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
For this appeal to be successful on the grounds of excessive hardship, the Appellant must demonstrate that there is no alternative means of transportation available to the impounded vehicle.
The Appellant is currently driving a second vehicle which has temporary plates on it. These plates expire on August 2, 2014. She cannot afford to have this vehicle safety certified or pay for the licence plate stickers. She has testified that she has used taxis on occasion and her neighbour “has helped.” The Appellant’s siblings live in her community, but they do not drive. Due to bridge construction, the bus stop in front of her home has been temporarily relocated 5-10 minutes away on foot.
The Appellant advised the Tribunal that she requires the impounded vehicle to drive her son to his doctor to be vaccinated and have a vision test before he starts school in September. Both she and her son are in good health and no appointments have been missed. Her community is 911 accessible and the hospital is 3 minutes away.
She also advised the Tribunal that she requires the impounded vehicle to continue her employment search and personally deliver her resumes to potential employers.
The Appellant has the right to seek compensation from the suspended driver, as stated in subsection 55.1(21) of the Act:
The owner of a motor vehicle that is subject to an order to impound under this section may bring an action against the driver of the motor vehicle at the time the order was made to recover any costs or other losses incurred by the owner in connection with the order.
After considering the criteria set out in section 10(1) of Ontario Regulation 631/98, the Tribunal finds that the Applicant has not established exceptional hardship as set out in section 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
Nives Montano, presiding Member
Released: August 5, 2014