Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9556/MVIA
CASE NAME: 9556 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: David B. Caryll, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard in Toronto: June 12, 2015
REASONS FOR DECISION
A hearing was held to consider the Applellant’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 Order to Impound imposed by the Registrar 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 are as follows:
Owner: the Appellant
Motor Vehicle: 2006 BMW X3 (the “vehicle”)
Date of Appeal: May 11, 2015
The appeal is on the basis: that the loss of the vehicle will result in exceptional hardship for the Appellant, as provided in sections 50.2(3)(d) of the Act.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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 set aside the Registrar’s order to impound the vehicle on the basis that the impoundment will result in exceptional hardship.
FACTS
The following facts are not in dispute.
At 8:35 p.m. on Thursday, May 7, 2015, the police stopped the vehicle on a public road and discovered that the driver’s licence was under suspension for an offence under the Criminal Code. The police impounded the vehicle.
The driver was the only occupant in the vehicle.
A summary of the Appellant’s evidence follows.
The Appellant testified , that the impoundment resulted in certain expenditures; in particular, the cost to lease a vehicle for certain aspects of her various business interests and taxis to take her son to school; Further, the cost of the impoundment will be significant. As for her son, she did allow that in good weather he could walk to school in 30 minutes. She said he had missed a couple of school days.
When asked about public transportation, she said that, although there was public transportation, she had never used it and didn’t want to.
She also testified that she and her son were in good health and had not missed any medical appointments. The Appellant also confirmed that she had access to 911 emergency medical services.
The Appellant also testified that as neither she nor the driver had knowledge that the driver was subject to a one year suspension, her vehicle should not have been suspended.
She said she attended the driver’s February 17, 2015 sentencing hearing, but was not aware that the driver was given a one year suspension. If she had known this she would not have allowed him to take his May 7, 2015, scheduled G-2 road test, which he was not permitted to take because the test centre told the driver he couldn’t take the test until his licence was reinstated.
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 and the driver at the time of the impoundment, as owners;
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 under the Criminal Code of Canada on February 17, 2015 pursuant to which the driver’s licence of the driver was then under suspension until February 17, 2016.
THE 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 before this Tribunal appeals on the basis of section 50.2(3)(
ISSUE
Should the Tribunal order the Registrar to release the 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 an order to impound under section 55.1 was previously made with respect to any motor vehicle then owned by the same owner.
Section 22 of Regulation 574, R.R.O. 1990, 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
The law as it applies to the facts of this case is quite straight forward.
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.
In this case there are alternatives for the impounded vehicle. The Appellant testified that she has leased a vehicle and that public transportation is available to her though she has chosen not to use it. As well, her son can walk to his school.
Second, the Tribunal may not, except in certain circumstances which are absent in this case, 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.
While the rental of a vehicle may cause the Appellant to incur certain costs, neither this cost nor the cost of the impoundment itself, are costs which the Tribunal can consider in determining whether the impoundment will result in exceptional hardship. Regarding the evidence that the Appellant did not know the driver’s licence was suspended, despite having attended his sentencing hearing, whether or not the Tribunal accepts that evidence as credible, it does not, in any event, provide a basis for appeal, under the very prescribed grounds set out in the Act.
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
_______________________
David B. Caryll, Member
RELEASED: June 17, 2015