Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-07-07
FILE:
9562/MVIA
CASE NAME:
9562 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:
Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
June 9, 2015
REASONS FOR DECISION AND ORDER
A teleconference hearing was held on June 9, 2015, 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”).
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: 2006 LNDR LR3 (the “vehicle”)
Date of Appeal: May 19, 2015
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the Appellant 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 testified that he is the owner of the vehicle, but noted that one of his family friends (the “driver”) was driving the vehicle at the time it was impounded on May 4, 2015. He testified that he usually allows the family friend to use his vehicle. Upon becoming aware of the impoundment, the Appellant learned that the family friend had a suspended driver’s licence at the time of the impoundment.
The Appellant testified that the impoundment of the vehicle has caused exceptional hardship on his business as he needs it for his business purposes. He is in the construction business and does drywall and taping work. The Appellant further testified that he gave up a couple of contracts since the impoundment of the vehicle as he does not have an alternate vehicle to transport his tools.
A few times during the impoundment period, the Appellant took help from his friends to transport his tools in their vehicles. He feels that it is too expensive to rent a vehicle as an alternate means of transportation. He conceded that the driver will help him with respect to the impoundment charges.
The Appellant has three kids who are all under the age of five. In cross-examination, he testified that his wife drives a Jeep. He also owns a BMW but testified that it is not in working condition. He stressed that he cannot work and make money while the vehicle is impounded.
Evidence for the Registrar
The Registrar tendered the following documents:
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 her driver’s licence suspended due to driving with more than 80 MGS of alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 22, 2016.
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.
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
Dealing with the ground of appeal under section 50.2(3)(d) of the Act, the Tribunal finds that the Appellant’s circumstances do not meet the detailed definition of exceptional hardship within the meaning of section 10 of O. Reg. 631/98. In order to determine exceptional hardship from the impoundment, the Tribunal must first consider if no alternative to the impounded motor vehicle is available. If an alternative is available, the Regulation does not allow the Tribunal to consider the other factors such as possible economic loss.
The evidence shows that the Appellant does have alternatives available to the use of the impounded vehicle. The Appellant testified that his wife owns a Jeep and he owns a BMW that needs some repairs. He also testified that, a few times, his friends have helped him in transporting his tools to his job sites.
While he has lost a couple of contracts during this impoundment, there appear to be reasonable alternatives to the loss of the use of his impounded vehicle, even though some extra costs or inconvenience may be involved.
As noted in the Regulation that the Tribunal must apply, since an alternative to the impounded vehicle is available, the Tribunal cannot consider the other factors that the Appellant has raised for exceptional hardship, such as economic loss. Therefore, the Tribunal denies the Appellant’s appeal.
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
_________________________
Harinder S. Gahir, Vice-Chair
Released: July 7, 2015