Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9380/MVIA
CASE NAME: 9380 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.
9380 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: March 4, 2015
REASONS FOR DECISION
A hearing was held on March 4, 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 “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: 2008, Dodg RPC (the “vehicle”)
Date of Appeal: February 11, 2015
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 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.
In the Notice of appeal, the Appellant stated she is a single mother and has limited income. She has part-time employment and uses the vehicle to supplement her income, hauling junk and other such items for pay.
The Appellant has 4 children, one of which is in remission for leukemia. She uses the vehicle to transport her children to school, community college and the hospital.
Two of her children have missed some school days due to cold weather when the Appellant felt she could not have them walking to school, which is what they did other days. The oldest has been unable to attend community college classes during the impoundment period because of the distance at which the community college is located. There was no testimony to point to any consequential impacts.
The Appellant wrote she is going through a "consumer proposal and trying hard to stay out of bankruptcy" but provided no elaboration in her personal testimony. She said the loss of the vehicle has impacted her ability to earn additional income for her son's graduation which is scheduled for several days after this hearing.
In cross-examination, the Appellant said she was unable to afford a rental car, taxis or make use of transit. There is a school bus service in the area but as they do not live far enough away from the school, her children do not qualify for that service.
The Appellant acknowledged she has another vehicle but said it is a seasonal vehicle and never used in winter. She could not use it because it does not have snow tires and they are too expensive to buy.
Regarding the driver of the vehicle at the time of the impoundment, the Appellant said she was aware his licence was under suspension as prior to the impoundment, she had accompanied him to pay off his accumulated fines - which amount was several thousand dollars.
She claimed that at the time the fines were paid, the driver was told the license would be reinstated. This was not the case as the driver's licence was still suspended at the time the vehicle was stopped by the police.
She acknowledged the driver, who is also the father of her children, would be helping with the impoundment costs.
The Appellant said she was in good health, has 911 access, and that she was still working in her part-time job, to which she could walk.
There were no missed medical appointments and while there was a check-up appointment scheduled for the child with leukemia, the Appellant acknowledged it could be moved to another day.
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 driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 26, 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.
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:
- 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
With respect to the issue of exceptional hardship, 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 and, if there is no alternative available, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle.
Section 10(4) of O. Reg. 631/98 requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.
The Appellant stated that her school age children do not qualify for school bus service because they do not live far enough away from the school. To her credit, she has not missed work as she has been able to walk there. Her school age children have also walked to school except on the unusually cold winter days.
Further, the Appellant acknowledged she has a second vehicle but claimed it was never used in winter. She said it could not be used in winter because she could not afford winter tires. However, the Appellant did not state why that vehicle could not have been used, during the impoundment period, on days with clear weather and dry road conditions.
The Appellant has not demonstrated that there is no alternative means of transportation available to her.
The Tribunal carefully considered the Appellant's evidence to determine whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or be 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 Appellant stated that a medical check-up appointment and some school days had been missed by her not having the vehicle but there is no evidence to show how or if these circumstances would have detrimental consequences for her children's continued schooling or health. Regarding the claimed impact on the graduation of one of her children, the Appellant provided no details to explain to the Tribunal how the lost income during the impoundment period would impact the child, or their graduation.
The Tribunal finds that there is no threat to health or safety as her community is 911 accessible.
In summary, and after careful consideration of the evidence provided, the Tribunal finds that on a balance of probabilities, the Appellant has not established exceptional hardship as set out in section 50.2(3)(d) of the Act.
DECISION
After considering all of 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: March 16, 2015