Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-07-17
FILE:
9642/MVIA
CASE NAME:
9642 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:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
July 14, 2015
REASONS FOR DECISION
A hearing was held on July 14, 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: 2006 Dodge Caravan (the “vehicle”)
Date of Appeal: June 25, 2015
ISSUES
As set out in the Appellant’s request for hearing, 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
The Appellant is a single mother of two young children, ages 3 and 2. She works in retail at a jewellery store, earning the minimum wage. Her children attend day-care when she is working.
On June 19, 2015, a friend, LH, the suspended driver, knocked on her door at about 6:00 p.m. as she was cooking dinner. He asked to borrow her van so that he could deliver a ladder to a job site. He had driven to her house in a car. She saw that a passenger was in the car with him. The Appellant was reluctant to give the van to him as she was planning to use it later. LH was persistent, practically begging to borrow the vehicle. She gave in, but told him that he had to have the vehicle back for her use later that evening. LH drove off at about 6:30 p.m. At approximately 7:30 p.m., a police officer showed up at her door, asking her if she knew who had her vehicle. The officer explained that she had stopped the driver for speeding, but as she approached the vehicle, he drove off. A police chase ensued but the officer gave it up when it became too dangerous.
The Appellant told the police officer that LH had borrowed the vehicle. The officer then did a records check which revealed that LH had a suspended licence, among other charges. The Appellant was unaware of this history and surprised by it as she had seen LH drive on several occasions and knew he drove while on the job with his father’s roofing company. Her assumption was, therefore, that LH had a driver’s licence which is why she would not have thought to ask for verification of his licence. LH was a friend of her boyfriend and had been to her house multiple times.
LH was apprehended by police later that evening and the Appellant’s vehicle was impounded. Her children’s car seats were in the vehicle at the time, but she was able, with the assistance of the police officer, to retrieve them.
The Appellant stated that the impoundment has been very difficult, causing her extreme hardship. She missed two days of work, immediately following the day of the impoundment. She works 30 hours a week, and supports her two children. She has to drop off the children at day-care before work. This requires her to take a cab to the day-care and then a cab to work, then reversing this at the end of her work day. The day-care facility is outside the bus route so public transit is not an option. Cab fares amount to approximately $36 per day. On occasion, her father has picked her up from work, when he is able to help, but he too needs his vehicle to get to work. Her boyfriend works in construction, out of town during the week so is unable to assist on a daily basis.
The Appellant explained that one of her children had cancer; he is now in remission, but does have to attend check-ups with his oncologist every six months. His next appointment is in early September. She needs a vehicle to get him there because the hospital is in another city. Her concern is that she will not be able to afford the impoundment fees (approximately $2,500) to get her vehicle back. The Appellant did acknowledge that 911 services are available in her town.
The Appellant has talked to LH regarding payment of the impoundment costs, and though he initially told her that he would pay, he subsequently said that he could not afford it. She has also talked to LH’s father who seemed unwilling to help her out, but suggested that she should sue LH.
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 2, 2017 for having a blood alcohol content in excess of .08.
The Ministry record also indicates that LH has never been licensed.
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:
- 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 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
The Appellant lent her vehicle to LH, the suspended driver, a decision she regrets. She had seen him drive on many occasions and therefore did not question him regarding the status of his licence. Her assumption was that he was licensed to drive. Although this may have been a reasonable assumption, she had an obligation to exercise more care in ensuring that her vehicle would be driven by a person whose driver’s licence was not then under suspension.
With respect to the defence 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 first consideration is 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 vehicle.
The Appellant gave her evidence in a credible and forthright manner. She has continued to work despite the challenge of the daily routine of getting her children to day-care so that she can work. She has found an alternative to her vehicle – taxicabs, though it has been inconvenient and costly. Her son has had significant medical issues, though fortunately is in remission. There is no evidence that her children will suffer any health risk if the vehicle is not returned immediately. On the evidence, the biggest issue for the Appellant is the cost involved in having to pay the impound fees; however, the existence of an alternative to the impounded vehicle means that the Tribunal is not permitted to consider any economic loss of this nature.
There is no doubt that the Appellant has endured some hardship as a result of the impoundment of her vehicle, but she has not established exceptional hardship as defined by the Act, and her appeal must therefore fail. As noted above, the legislation is very prescriptive and the grounds on which the Tribunal can order the release of a vehicle are limited, which can in some situations result in harsh consequences for an appellant.
The Tribunal is sympathetic to the circumstances in which the Appellant finds herself. The financial consequences of an impoundment are not insignificant. While the Tribunal is precluded from considering the costs of the impoundment, the Appellant may wish to note that section 55.1(27) states:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
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
Patricia McQuaid, Vice-Chair
Released: July 17, 2015