9654/MVIA v. Registrar of Motor Vehicles, 2015 CanLII 50495

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-07-23

FILE:

9654/MVIA

CASE NAME:

9654/MVIA 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:

Alex McCauley, Member

APPEARANCES:

For the Appellant:

Brandon Miller, Counsel

For the Respondent:

Sonia De Santis, Counsel

Heard by teleconference:

July 16, 2015

REASONS FOR DECISION

A hearing was held on July 16, 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: 2008 Chevrolet trailblazer (the “vehicle”)

Date of Appeal: June 29, 2015

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 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 and his wife both gave evidence.

The jist of their evidence was that the impounded vehicle, a 4 wheel drive, was necessary in order to access their residence which has a steep hill from the entrance to of their property to the house itself It is a steep hill down to their house. Although they have other vehicles, they maintained that this was the only vehicle which provides access.

The Appellant’s spouse, S.W. stated that she is a mental health consultant who does most of her work within the educational system. Due to her employment, she is required to transport equipment and books to the various sites where she works. By not having the vehicle available at the bottom of the hill, she has to transport all of this equipment to the other vehicle at the top of the hill. This is both difficult for her and time-consuming.

S.W.is in relatively good health but does suffer from hypertension and other non-emergency ailments. These conditions are exacerbated by having to transport, by hand, all of her equipment and supplies up the hill on a daily basis. She has found it necessary to take vacation time in order to relieve the stress.

In addition, S.W. assists her son and his family by providing limited day care for four grandchildren. She says it becomes difficult when you have to corral four small children and get them up and down the hill.

S.W. went on to describe the difficulty associated with minor tasks like getting groceries to her residence. She stated that it takes at least four trips up and down the hill to unload her groceries.

In cross-examination, S.W. admitted that she has not missed any appointments, medical or otherwise, nor has she missed work and that her vacation is paid. She further stated that they have full access to 911 service and they have the use of another vehicle, albeit they can’t drive it down to the bottom of the hill. They have been able to manage their day-to-day affairs, but it is with great difficulty.

The Appellant, in his evidence, stated it is very difficult for him to manoeuvre the hill on foot. He advised that he has a serious foot injury that makes it very difficult for him to put any weight on the injured foot. He often has to stop while he is attempting to traverse the hill.

Both the Appellant and his wife maintain that it is a health and safety issue for both them, and the children that they provides occasional day care for, to try and access the hill without the assistance of the appropriate vehicle.

The Appellant stated that due to his injuries and his illnesses he is not been able to work and as a result the family income has seriously been depleted. He is concerned that the cost of getting his vehicle out of impound will be a critical blow to the family income.

Both the Appellant and his wife maintain that there was no alternative to the loss of the four-wheel drive vehicle in order for them to access their residence in the normal fashion.

Evidence for the Registrar

The Respondent’s evidence was tendered by the documentation listed below. The Appellant and his counsel admitted the documents and admitted that the Appellant was the driver of the vehicle at the time he was stopped by the Ontario Provincial Police and at that time, his licence was under suspension.

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 of Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 10, 2015.

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.

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, 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 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 claims exceptional hardship as grounds for his appeal. 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 there is an alternative to the motor vehicle. Furthermore, the impact of the loss of the vehicle, that is, the exceptional hardship, must be on someone other than the suspended driver. In this instance, the suspended driver is the owner.

The Tribunal must therefore determine whether the ground of exceptional hardship is available as ground of appeal as a result of the impact on S.W. or other family members. The Tribunal must first consider whether S.W. has an alternative to the impounded motor vehicle. The evidence is clear; they do have other vehicles. However, they state that only the impounded vehicle gives them the necessary access because it is a 4 wheel drive and without it they must walk a very steep hill to gain access to their home.

Although there is no doubt that the Appellant and his wife, and to a lesser extent perhaps, their grandchildren, have been inconvenienced by the loss of their four-wheel-drive vehicle, their plea is simply that, inconvenience. Pursuant to the regulation, the Tribunal is not permitted to consider whether the impoundment will result in inconvenience to any person. Further, there is no evidence that the loss of the vehicle is a threat to their health or safety.

The Appellant and his family have been able to maintain their daily activities. They have other vehicles. The family has experienced some disruption in their routine, but not to the extent required to establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.

While the Appellant and his wife did describe some level of inconvenience caused by the impoundment, the evidence indicates that S.W. does have alternatives available to the use of the impounded vehicle, and therefore the Appellant has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.

The Appellant stated that he 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

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

_______________________

Alex McCauley, Member

RELEASED: July 23, 2015