9393 v. Registrar of Motor Vehicles, 2015 CanLII 20242

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-03-17

9393/MVIA

9393 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

Geneviève Blais, Member

For the Appellant:

Self-represented

For the Respondent:

Steve Grootenboer, Agent

Heard by teleconference:

March 10, 2015

REASONS FOR DECISION AND ORDER

A hearing was held on March 10, 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 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 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: 2006 NISS ASL (the “vehicle”)

Date of Appeal: February 12, 2015

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.

Should the Tribunal order the Registrar of Motor Vehicles (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 is a single mother of three children, ages five, three and one. She works at two employments. The Appellant resides alone with her children. The suspended driver is the father of her eldest child and he provides no financial support for his child. Her contact with him is limited to asking him for help from time to time and as such he will purchase groceries or school items for his child.

On the day the vehicle was impounded, the Appellant telephoned the suspended driver and asked him for help. He offered to buy groceries and she allowed him to use the vehicle. She was unaware that he did not have a valid driver’s licence. She now realizes she ought to have been more careful with lending him the vehicle and taken the necessary steps to ensure he had a valid licence.

The Appellant stated that the loss of the vehicle is causing her exceptional hardship. The vehicle is her sole means of transportation to drop off her children to daycare and attend work. When the vehicle was impounded, she initially rented a vehicle. As she found the cost of renting too expensive, she has now resorted to leasing a vehicle. The cost of leasing a vehicle and the cost of the impoundment will cause her financial hardship to an already stressed financial situation.

In cross-examination, the Appellant stated that since the impoundment she has missed one day of work and has rescheduled one medical appointment for one child. She acknowledged that in 2013, the suspended driver had a previous incident of a 7 day impoundment with one of her vehicles. She recalled few details of the event and reiterated she was unaware that he was a suspended driver. She accepts that she did not take steps to protect herself on this occasion. Although she acknowledged that several other vehicles are registered in her name, she insisted that none are road worthy. She has not taken steps to cancel their registrations.

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 on November 24, 2014, of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 24, 2015.

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).

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.

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 also 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 stated that the loss of the vehicle is causing her exceptional hardship.

In his summary statements, the Agent for the Registrar asked the Tribunal to confirm the decision of the Registrar. He submitted that the Appellant has an alternative mode of transportation. Further, in her Notice of Appeal, she took full responsibility for lending the vehicle to the suspended driver. There are no health or safety concerns that can be considered in this matter.

The provisions in section 10 of O. Reg. 631/98 are very strict and require that an owner demonstrate that every reasonable alternative to the impounded vehicle has been considered. In this case, the Appellant’s testimony established that she has leased a vehicle and has alternatives to the impounded vehicle. The Tribunal recognizes that this alternative is inconvenient and costly to her. The Tribunal is bound to apply the legislation as it is written and the Tribunal cannot, in these particular circumstances, consider inconvenience or financial loss to the Appellant. There was no evidence before the Tribunal that her employment or the children’s care have been impacted.

The Tribunal finds that the Appellant has not met the onus under section 10(3)(a) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available”.

Therefore, the appeal on the grounds of exceptional hardship has failed.

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 impoundment facility for 45 days.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

Released: March 17, 2015