Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9373/MVIA
CASE NAME: 9373 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 -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: February 26, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on February 26, 2015, 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 has reviewed the evidence and submissions and makes the following Order.
Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impoundment 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: 2011 CHEV EQU (the “vehicle”) Date of Appeal: January 26, 2015
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), 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. In addition, some of the evidence before the Tribunal raises the possible argument that the vehicle was stolen (under s. 50.2(3)(a)) or that the owner had exercised due diligence (under s. 50.2(3)(c)).
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Notice of Appeal filed with the Tribunal was entered as Exhibit #2.
The Appellant states in the Notice of Appeal that she allowed the suspended driver to take the wheel as she was not aware of his suspension and she also felt intimidated by him. The driver was previously in a relationship with the Appellant and he is the father of the Appellant’s child.
During the hearing, the Appellant reiterated her statements on the Notice of Appeal, explaining that she felt threatened by the suspended driver, and has now taking steps to change her life to get away from the suspended driver.
On the exceptional hardship ground, the Appellant indicated that she needs the vehicle to get to work and to get her son to school and to various extracurricular activities. The Appellant has missed some meetings that take place prior to work, due to not being able to get to work on time. As well, her son‘s performance has been affected as he has not been able to get to the martial arts classes.
In cross-examination, the Appellant confirmed that she has been able to get to work but has had to walk to get her groceries.
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:
A 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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 11, 2016.
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.
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 Appellant here appeals on the basis of section 50.2(3)(d). In addition, some of the evidence before the Tribunal raises the possible argument that the vehicle was stolen (under s. 50.2(3)(a)) or that the owner had exercised due diligence (under s. 50.2(3)(c)).
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 requested that the vehicle be returned as she has encountered exceptional hardship. Some of the evidence raised the possible argument that the vehicle was stolen, or that the owner had exercised due diligence to try to determine the status of her ex-boyfriend’s driver’s licence. However, the Appellant did not provide sufficient evidence or arguments to justify the Tribunal proceeding on either of these two grounds. The Tribunal notes that the documentary records from the Ministry showed that this driver had never even been licensed. There is no evidence that the Appellant ever asked to see this person’s driver’s licence, or ask about its status. The fact that she felt intimidated by him into letting him drive her vehicle is unfortunate, but her statements in this regard do not provide a strong enough reason to let him drive when she did not have enough information about his driver’s licence or its status.
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 and never licenced.
As far as exceptional hardship, alluded to by the Appellant, the Registrar’s Agent, referred to Ontario Regulation 631/98, pointing out that the appeal does not meet the criteria as the Appellant has been able to get to work, and her son has been able to attend school.
The Registrar’s Agent quoted section 55.1(27) which he submitted precludes the Tribunal from considering the costs of impoundment, such as towing and impoundment fees, as exceptional hardship.
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…
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 the Appellant has alternate transportation, albeit inconvenient, available to her.
The Tribunal’s enquiry must come to an end and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.
While the Tribunal is precluded from considering the costs of the impoundment, the Appellant may wish to note that section 55.1(27) states that:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirmed the impoundment of the Appellant’s motor vehicle, and it will remain at the impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Member
Released: March 10, 2015