9513 v. Registrar of Motor Vehicles, 2015 CanLII 38747

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-05-20

FILE:

9513/MVIA

CASE NAME:

9513 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:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 13, 2015

REASONS FOR DECISION AND ORDER

A hearing was held on May 13, 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”).

Pursuant to section 50.2 (5) the Tribunal sets aside the impoundment. As a result, the Registrar is ordered to release the Appellant’s motor vehicle

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: 1992 CHEV GM4 (the “vehicle”)

Date of Appeal: April 20, 2015

As a preliminary matter, the Tribunal heard a motion by the Appellant for an order granting an extension of time to allow the Appellant to file her appeal outside the legislated timeline. The time for filing an appeal to this Tribunal expired on April 15, 2015. The Appellant filed her appeal on April 20, 2015.

The Appellant explained the reasons her appeal was late, and the circumstances surrounding the impoundment. She was in hospital for a heart procedure and learned of the impoundment from her common law husband, the suspended driver, when she returned home the next day. She was heavily medicated and was not feeling well. During the following two weeks, she was coping with the death of her brother in law and a close friend. The Appellant stated she was having a very hard time and finding herself very stressed. She was overwhelmed trying to deal with the loss of beloved ones, and concerns over her medical and personal issues without the convenience of her vehicle.

According to the suspended driver who testified at the hearing, when the vehicle was impounded, he was not provided with a notice of impoundment by the police. He was only issued a ticket for driving while under suspension and told the vehicle was impounded for 45 days. No appeal process was explained.

Approximately one week after the vehicle was impounded, the Appellant asked her daughter to drive her to the police station to inquire about the return of the vehicle. It was only at that time that she was provided with information to contact the Tribunal. After speaking to the Tribunal, she received, by regular mail the required forms to file the appeal. The Notice of Appeal is signed April 14, 2015. However, the Appellant stated she did not have the money to pay the required fee. Her daughter was unable to assist her due to her own financial difficulties. The Appellant felt too proud to ask anyone else for help. A few days later, her 84 year old mother-in-law offered to lend her the money to file the appeal.

The Tribunal concludes that the Appellant did intend to file her Notice of Appeal on time, and accepts that her medical and personal circumstances were mitigating factors in her delay. Accordingly, the motion was allowed and the Appellant was granted the requested time extension.

Evidence for the Appellant

The Appellant pleaded for the return of the motor vehicle as she lives in a small village in northern Ontario. Her medical services are located 17 and 80 kms away. Local public transportation is not available. The Appellant stated that without her vehicle she is unable to keep all of her appointments.

According to the Appellant, she suffers from several health issues and requires weekly monitoring by her physician who is located 17 kms away from her residence. The Appellant provided a medical letter from her physician who stated she has been a patient for four years. She suffers from chronic pain that is disabling and limits her mobility. The Appellant sees her physician weekly for injections of pain medication to help her maintain her current level of mobility.

The Appellant resides with the suspended driver who is her common-law husband. On the day of the impoundment, the Appellant was required to attend a hospital for an angiogram. The hospital is located in a community 80 kms away. They left very early in the morning for the 6:30 a.m. arrival time scheduled by the hospital.

The Appellant’s husband, the driver, was present during the hearing. He stated that shortly after arriving at the hospital, the Appellant realized she had forgotten to bring her medication as was required by the hospital. As the Appellant was waiting and prepped for the medical procedures to occur, she had left her personal belongings with him, including her purse which contained the keys for the vehicle. Without discussion with the Appellant, he took it upon himself to drive back to their residence to retrieve the medication and was stopped by the police. He accepted full responsibility for his behaviour. He thought he was doing the right thing and did not think of the possible consequences of his actions at the time.

When the Appellant learned of the impoundment from her husband, she was very upset. She was adamant she was not aware that he took the vehicle while she was in the hospital. Although the suspended driver was registered as a co-owner of the vehicle at the time of the impoundment, on April 28, 2015, the Appellant removed him from her ownership registration and vehicle insurance.

The Appellant stated that she and her husband are currently in receipt of a disability pension. Their financial situation is very strained. Their monthly costs include a mortgage, loan payments, land taxes and exorbitantly high hydro bills. She borrowed money from her mother-in-law to pay the last hydro bill. There is little money remaining every month after food and incidentals. Since the date of the impoundment she has paid for rides, but has found this difficult and stressful. Although she is required to see her doctor weekly, she has missed two medical appointments as she had no means to get there. Taxis from the larger community are unreliable and the cost is prohibitive. She is expected to soon follow up with her heart specialist.

Her daughter, who lives 80 kms away, has helped her on a few occasions. However, she does not have the financial means to assist the Appellant without being paid. One friend has helped with rides on a few occasions. However, this friend works two jobs and is not always available. She also expects to be paid for transportation.

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:

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 on October 7, 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 October 7, 2015.

The Registrar did not call any witnesses.

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:

1. 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.

2. 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.

3. 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, 3^rd 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 his closing submissions, the Registrar’s Agent pointed out that the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.

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.

In this case, the Appellant, who is under the care of a number of medical professionals, lives outside of a major municipality and requires the use of a vehicle in order to attend various medical appointments.

In her Notice of Appeal (Exhibit #2) filed with the Tribunal, the Appellant provided a document confirming her hospital admission on the day the vehicle was impounded and a letter from her doctor confirming her current treatment. She is currently being followed by four medical programs and specialists. Since the impoundment, the lack of the vehicle has prevented her from attending all of her appointments as she was unable to secure alternate transportation. She lives 17 kms away from her weekly medical services and 80 kms away from her heart specialist. She is dependent on the goodwill of a friend or of her daughter who lives a significant distance away.

The Tribunal found the Appellant credible, and accepts that the Appellant has missed regular medical appointments which she needs to attend, and for which she requires a vehicle.

She testified that she and her husband receive disability pensions as their sole source of income and there are no funds available to replace the impounded vehicle. The Appellant testified that funds are not available to use taxis to reach the larger city as the cost would be prohibitive.

The Tribunal therefore finds that there is no reasonable alternative available to the impounded vehicle.

The fact that the Appellant is under very active medical care from a broad range of medical and therapy specialists is sufficient to convince the Tribunal that, on a balance of probabilities, the loss of the Applicant’s vehicle does present a threat to her health and safety. Considering the entire circumstances of this case, the Tribunal finds that the impoundment of the Appellant’s vehicle changes a mere inconvenience to one of exceptional hardship.

Having found that the impoundment will result in exceptional hardship, in accordance with section 50.2 (3)(d) of the Act, the Tribunal therefore orders that the Appellant’s vehicle be released.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the Order of the Registrar of Motor Vehicles to impound the Applicant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

Released: May 20, 2015