Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-06-01
FILE:
9566/MVIA
CASE NAME:
9566 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
May 28, 2015
REASONS FOR DECISION
A hearing was held on May 28, 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: 1997 BMW 285 (the “vehicle”)
Date of Appeal: May 1, 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 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
The Appellant testified that she lives with her husband, her mother-in-law, her brother-in-law and three of her four children. On the day of the impoundment, her eldest son asked to borrow the vehicle to visit a friend. The Appellant’s son and her friend used the vehicle to get fast food and, while at the restaurant’s drive through, the friend, who is the suspended driver in this case, was found in the driver’s seat by police. The Appellant testified that the vehicle’s car keys were, however, in her son's hand.
The Appellant’s husband has a vehicle which he uses to drive to her work, which includes Saturdays. The Appellant’s younger son also works full time. The Appellant herself worked part-time and used the vehicle to drive to work. Before the impoundment, she worked two days a week, from approximately 8:00 or 8:30 a.m. to 1:00 or 1:30 p.m. When the vehicle was impounded, she told her employer that it was too difficult to get to work and therefore stopped going in. She does not know if the job will be available when her vehicle is released. Asked if the municipality in which she lives has public transit, the Appellant stated it does, but that she has problems with her legs and it is too difficult for her to use and therefore she made no attempt to try to use it. She also stated that she would have to leave earlier than normal to get to the job on time and this would mean her husband would have to get her youngest son, who is five years old, ready for school. She testified that it would be too hard for him to do so.
The Appellant’s vehicle was also regularly used to drive her youngest son to school and for household errands. It was also borrowed by her two older sons, the younger of whom works full time. Since the impoundment, the Appellant’s husband has been dropping her sons at work and at school. At the end of the school day, the Appellant walks to the school to meet her son and walk home with him. With respect to errands and appointments, the Appellant has occasional assistance from her married daughter who owns a vehicle. However, the Appellant testified that her daughter “has her own life” and cannot always help her.
The Appellant’s youngest son is scheduled for surgery later in the summer. The Appellant testified that she needs her vehicle in order to take him to pre-surgical medical appointments. The day before the hearing, he missed a medical appointment on an unrelated matter. The Appellant had to cancel the appointment and reschedule it for a Saturday because her daughter did not in fact have the day off as the Appellant had believed. Further, the Appellant’s mother-in-law asked her to make a medical appointment which the Appellant has not yet done because she does not know how she would get to it. There is 911 emergency service available in the municipality where the Appellant lives.
Finally, the Appellant indicated that she cannot afford to pay the impoundment fees.
The Appellant’s eldest son also testified. On the day of the impoundment, as his mother testified, he went to visit a friend who asked to be driven to pick up food. The friend, who is suspended for life, and whom the Appellant’s sonhad not seen for six months, told him that he had his licence and that “everything is done”. The Appellant’s son did not ask to see the licence. While they were waiting for food at the drive-through, the friend asked to sit in the driver’s seat. He started the vehicle but the vehicle was parked. The police then arrived. Asked by Ms De Santis if the friend had care and control of the vehicle, the witness stated “yes, for about 5 seconds”. The friend has not offered to help the family in any way.
The witness also indicated that he is currently looking for work but that he is unable to follow up on job leads without the use of his mother’s vehicle.
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 Applicant 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 Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted under the Criminal Code of Canada of impaired driving pursuant to which the driver’s licence of the driver has been suspended for life.
The Registrar’s representative also noted that the suspended driver in this case received an ADLS suspension when the vehicle was impounded.
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 Applicant here appeals on the basis of sections 50.2(3)(d).
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.
- 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
With respect to the issue of exceptional hardship, Section 10 of Regulation 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.
In this case, the Appellant lives in a household with a second vehicle, which is used by her husband to reach his employment. The Appellant testified that she relied on the impounded vehicle to get to her part-time job and had to give this job up after the impoundment. However, she agreed that she could have reached her employment by public transportation but chose not to attempt this, stating it would be too difficult and, because she would have to leave home earlier, her husband would be responsible for getting her young son ready for school, something she stated would be too difficult for him.
The impounded vehicle was also used by the Appellant to drive her young son to school and for household errands. In addition, her two older sons occasionally borrowed the vehicle. Since the impoundment, the Appellant’s husband has driven the young son to school and one of her two sons to his full time job. The Appellant lives within walking distance of the school and walks there to meet the young son at the end of the school day. In addition, the Appellant has received occasional assistance from her married daughter who owns a vehicle.
Finally, while the Appellant testified about a missed medical appointment, there was no suggestion that the loss of the vehicle represents a threat to the health and safety of anyone in her household. The municipality in which the Appellant lives has 911 emergency service.
The Appellant stated that she cannot afford to pay the fees associated with the impoundment. However, the Tribunal cannot consider these costs in determining if the loss of the vehicle has resulted in exceptional hardship.
While the Appellant did describe some level of inconvenience caused by the impoundment, the evidence indicates that she does have alternatives available to the use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
There is insufficient evidence in this appeal to support consideration of any grounds other than exceptional hardship. The Appellant and her son both testified that the vehicle was not driven by the suspended driver. The Tribunal notes that their evidence is inconsistent with the fact that the vehicle was impounded and that the suspended driver received an ADLS suspension,. The Appellant’s son testified that the suspended driver only started the vehicle and had ‘care and control’ of it for “maybe five seconds”. The Tribunal also notes that the Appellant testified that her two adult sons regularly had use of the vehicle. There was no evidence to suggest that there were any restrictions on that use. The Appellant’s son indicated that he was aware of the past difficulties the suspended driver had with his licence. He testified that he was told “everything is done” but he made no effort to verify the licence status of the suspended driver. The Tribunal therefore cannot consider the grounds of stolen or due diligence in this case.
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
_______________________
Mary Ann Spencer, Member
RELEASED: June 1, 2015