Licence Appeal Tribunal
FILE: 9668/MVIA
CASE NAME: 9668 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
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATORS: Gary Yee, Associate Chair Eleanor White, Member
APPEARANCES:
For the Appellants: Robert Tindall, Paralegal
For the Respondent: Sonia DeSantis, Agent
Heard by teleconference: July 28, 2015
REASONS FOR DECISION
A hearing was held on July 28, 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 ORDERS THE REGISTRAR TO RELEASE THE VEHICLE to the Appellant.
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: 2013, Mercedes (the “vehicle”)
Date of Appeal: July 13, 2015
The Appellant’s driver’s licence was under suspension when he bought a car in his name, for his common-law partner (“CC”) to use. The vehicle was for CC’s use only, for work and as the family vehicle, and she paid for the loan and other car-related expenses. The vehicle was impounded after the police stopped the Appellant when he was driving during a move between residences. The Appellant was initially given a seven-day impoundment, and a few days later, he received a 45-day impoundment notice.
ISSUES
The Appellant provided several grounds for appeal: that the motor vehicle was stolen, and that the loss of the vehicle will result in exceptional hardship. The Appellant also had two procedural arguments – that there was no proper 45-day impoundment and that his Charter rights were violated.
FACTS
Evidence for the Appellant
The Appellant and CC both testified. The Appellant lives with CC, and they have a one year-old child. Both of these witnesses were credible, and there did not appear to be many facts in dispute. The Appellant has an anxiety disability, and he is receiving ODSP (Ontario Disability Support Program) payments. He won a lottery and used most of the proceeds as a down payment of $20,000 for the vehicle that was impounded. His mother co-signed a loan for the balance of the price of this vehicle.
The Appellant was stopped by a police officer on the night of June 30, 2015, apparently for a possible stop sign violation. The officer informed him that the vehicle would be impounded and held for seven days, as noted in the form he received from the officer – “Towed Vehicle Report and Notice of Impoundment.” No Highway Traffic Act violation was specified on the form; however, the box marked “other” was selected, with the handwritten notation “Drive Prohibited.”
A few days later, the Appellant received a couriered envelope that contained a “Notice to the Registrar, Notice of Impoundment,” informing him that the vehicle would be held for 45 days, due to the fact that his driver’s licence was suspended at the time of impoundment.
The Appellant’s driver’s licence was suspended when he bought this vehicle. He intended the vehicle to be used by his common-law partner, and she is the sole insured driver of the car, and is paying for the insurance. She also contributes to the car loan payments. The vehicle, however, is registered solely to the Appellant. This had been a condition imposed by the co-signer of the car loan, the Appellant’s mother.
On the evening of June 30, 2015, the Appellant and CC were in the process of moving to a new house they had leased. CC had borrowed the Appellant’s mother’s truck to transport items to their new dwelling. The Appellant did not wait for CC’s return, but instead decided to drive his packed vehicle to the new dwelling to help his partner unpack their belongings. He expressed his regret for doing this. He did not ask CC if he could drive the vehicle. The car key was with the house key. CC confirmed in her testimony that the Appellant did not have her permission to drive the vehicle, which was insured for her use only.
CC testified about the impact of the impoundment of the vehicle on the circumstances of her employment and their family life. She had received her last maternity leave EI benefit on July 7, 2015, and had expected to return to work immediately. She works as a personal support worker (PSW), helping one family consisting of a disabled mother and daughter, and she has been caring for them for six years. The impoundment of the vehicle has rendered CC unable to return to her PSW job because the conditions of her employment require a vehicle to serve as transportation for the client for appointments and day to day necessities and shopping. Furthermore, without a vehicle, it is very difficult for CC to get to her client’s residence, since it is on the other side of a geographically large city that would require three different bus routes and up to two hours for a one-way trip, which might not even be possible if she has to get to her work location in the early morning. The use of a taxi to get to her work location is estimated to be $30 each way. But regardless of these options, she still wouldn’t have a vehicle to transport her client around or to run errands for her.
During CC’s maternity leave, the agency that employs CC had been sending other PSWs to care for this client. But CC testified that the client and the agency are losing patience with the delays, because they had expected her to return on July 7. CC’s agency has warned her that if the client agrees to keep a different PSW permanently, then CC will not have any job as of August 15, when the vehicle may be released from impoundment. It will then be up to CC to find a new client, which will be difficult because of the lack of PSW jobs in this city, where she said two nursing homes closed recently.
Financially, both the Appellant and his common-law partner stated that without CC’s employment income, they would not be able to meet their commitments for rent, the car loan, the Appellant’s furniture loan, CC’s student loan, and then also the impoundment fees, let alone pay for necessities of life. Their only income at this time is the Appellant’s monthly ODSP payment of $1,090 and CC’s baby bonus of about $500 a month
CC had previously used an older vehicle for her employment and for family needs during her maternity leave, but that vehicle was no longer drivable. She had also used the Appellant’s mother’s vehicle but this has stopped because the Appellant’s mother is angry at the Appellant for having his vehicle impounded.
The Appellant testified that his social anxiety disorder meant that he could not take public transit. He rarely went out anyway, and he said he would walk one hour if needed to go to an upcoming appointment with his counsellor.
CC testified that she has used a bus or walked to get supplies for the family. The grocery store is an hour’s walk away. She has not attended her weekly counselling sessions because they are too far away – up to two hours for a one-way trip by public transit. She has felt a negative impact from this because this counselling had been very helpful as a new mother. It also took her two hours to take her infant to get a needle, and they were too late and missed the appointment.
Evidence for the Registrar
The documents submitted by the Registrar and admitted into the record 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;
Copy of a Notice to Registrar indicating a 45-day impoundment arising from the June 30, 2015 incident;
Copy of a Notice of Impoundment dated July 1, 2015;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving with more than 80 mgs alcohol in his blood, under the Criminal Code of Canada pursuant to which the licence of the driver was then under suspension until October 3, 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:
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 sections 50.2(3)(a) and (d).
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time in respect of which the vehicle was detained in order to be impounded?
The meaning of “stolen” is not defined in The Highway Traffic Act. Although there are dictionary definitions of this word, and also related provisions in the Criminal Code about stealing and theft, the word “stolen” in this appeal must be interpreted in the context of the Highway Traffic Act, and in the context of these impoundment provisions. Generally, the perspective of the vehicle owner is important when considering whether the vehicle was “stolen” because the impoundment provisions are intended to promote public safety – that is, deter and penalize owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles.
The Divisional Court held in Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court held that the term “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and stated:
“In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.”
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 Ont. 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 the Tribunal may consider 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
The Tribunal finds that this impoundment has resulted in exceptional hardship for CC, and grants the appeal on this ground. The Appellant and his representative argued a number of other grounds, none of which are supported in this decision.
As to the issue of the vehicle being stolen, the Appellant’s representative submitted that the vehicle’s beneficial owner was CC, and the Appellant had no right to drive that vehicle without her permission. However, the vehicle is in fact registered to the Appellant as the sole owner. Even if the Tribunal accepts that CC is the owner in a practical sense, that does not mean that the Appellant is not also an owner. It is difficult to imagine how the Appellant can be seen to have stolen the vehicle from himself. The argument that he had stolen the vehicle from his common-law partner CC also fails because this was not a situation where CC would have a legal right to prohibit the Appellant from driving their family vehicle if he was properly licensed, or where CC could stop the Appellant from having some claim on the vehicle’s ownership if their relationship happened to break down. In any event, even if the Tribunal is prepared to find that the Appellant stole the vehicle from CC, the Tribunal cannot order that the vehicle be released to CC because she is neither a registered owner nor is she an appellant.
As to the issue of exceptional hardship, the evidence provided in testimony by the Appellant and CC shows financial hardship and inconvenience for both of them, although it is CC who has been the most affected. The Tribunal is not considering the financial impact of the Appellant having to pay the impound fees or having to sell his vehicle or default on his loan, because the legislation does not permit those kind of losses by the suspended driver to be considered. Under section 10 of Ont. Reg. 631/98, the Tribunal is considering the hardship to CC as a person who is ordinarily transported in the impounded vehicle, and a person who is not the suspended driver.
The legislative test is detailed and strict. Section 10 of the Regulation first requires that there is no alternative to the impounded vehicle. Section 10(4) states: “In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.”
In exceptional hardship cases, it is often the first hurdle that is the most difficult – the Appellant must show that no alternative to the impounded vehicle is available. In this case, the relevant loss is CC’s financial loss or loss of employment, and the Tribunal must consider if all reasonable options have been considered to adequately mitigate or reduce her loss in this situation.
The Tribunal finds that CC has no reasonable alternative to the Appellant’s impounded vehicle in terms of her employment. Even if it could be seen that it is reasonable for CC to take public transit for up to three or four hours a day in a round trip, or even pay maybe $30 or more for a taxi to get to work, it is clear from CC’s testimony that her PSW work requires a vehicle during her time when caring for her clients, for errands or driving her clients to appointments.
With that first hurdle passed, the Tribunal must then consider if the impoundment will result in a financial or employment loss that will be “immediate, significant and lasting.” The Tribunal heard evidence that CC’s employer or agency is not pleased with the delay in her return to work from maternity leave, and that they are losing patience with her situation of not having a vehicle available. Her clients of six years may also be losing patience, and they may end up asking to stay with their current or new PSW rather than have CC return to care for them. At the same time, the evidence did not show that CC was more likely than not to lose her job. It is only a risk or speculation at this point.
If the Appellant can get his vehicle released on August 14 after the 45-day period, then it will be only two and a half weeks from the date of this hearing and about five or six weeks after the previously expected date of CC’s return to work (July 7). If the Appellant ends up not being able to pay for the release of the vehicle on August 14, then there will be a greater delay. But even then, a forced sale of the vehicle would easily pay for the $1,500 impound fees and the outstanding loan, which would leave enough money for the Appellant to buy another vehicle for CC to use for her work. In the end, the Tribunal does not have enough evidence at this time to show that CC will likely lose her PSW job as a result of this impoundment.
But the other loss to CC that needs to be considered is her current loss of employment income. The Tribunal has already found that CC has no reasonable alternative to this impounded vehicle in terms of her work, and this has therefore caused her to be unemployed since her maternity leave ended on July 7. While the evidence did not support a finding that CC was likely to lose her job, she still has lost her employment income during these six weeks (or longer if it takes more time to sell the car or otherwise somehow get the car out of impound). The question is whether this loss of income qualifies as exceptional hardship under the Act because it is “immediate, significant and lasting.”
In many exceptional hardship cases, the Appellant is the owner who is at fault for having permitted their vehicle to be driven by a suspended driver, but who is claiming hardship from not having use of the impounded vehicle and from having to pay expensive impound fees. This case is more unique. While it also involves an Appellant who is at fault, the claim of exceptional hardship relies mainly on the hardship being suffered by neither the suspended driver nor owner. CC has lost the use of the Appellant’s impounded vehicle and she has no reasonable alternative for that because she needs a vehicle for her work. This has caused her to lose at least six weeks of full-time employment income, which would have paid her about $800 in take-home pay every two weeks. The evidence is that she has had to borrow some money from her parents. Her only income is her “baby bonus” of $500 a month, but she has student loan payments of about $300 a month, and she also contributes to the household expenses that the Appellant is unable to afford by himself, since he is receiving ODSP of $1,090 a month, and the rent alone is $925 a month, and they have a one-year old child to provide for.
In these difficult financial circumstances, the loss of these six weeks of employment income is certainly immediate and significant for CC. The Tribunal also finds that it meets the legislative requirement of being lasting in nature. This third requirement does not mean the impact has to be permanent, but it certainly will be much more than a temporary impact for someone in CC’s financial situation. Her loss of six weeks of full-time pay, and perhaps more if the vehicle is not released immediately on August 14, constitutes much needed money that will drive her into deeper debt, causing extra hardship which will take more time to recover from. Therefore, the Tribunal finds that the circumstances of this case support a finding that this impoundment results in a financial loss to CC that is immediate, significant and lasting. It is on this basis that the appeal succeeds. The Tribunal is aware that this may lead to an undeserved benefit to the Appellant, who will no longer need to pay the impound fees to release the vehicle that he owns, but that does not stop the proper application of the legislative test to recognize the exceptional hardship caused to CC in these circumstances.
The Appellant also raised another reason for exceptional hardship – a threat to the health or safety of any person – which the Tribunal finds is not supported by the evidence. The health of the clients cared for by CC is not affected because they have other PSW care being provided by CC’s agency. There was also testimony about the Appellant’s mother missing her medical appointments while waiting for a lung transplant. Despite this possible health concern, the evidence was also very clear that the mother has a vehicle that can be driven by CC (and has been in the past), but the mother has not asked for that help because she is angry at the Appellant for having his vehicle impounded. There was also some testimony about CC missing her counselling appointments, and their child missing his one-year needle because it took much too long to get to the doctor’s office. However, none of these missed appointments are significant enough to be seen as a threat to anyone’s health or safety.
OBJECTIONS BASED ON AN IMPROPER IMPOUNDMENT
The Tribunal also had submissions from the Appellant and his representative about two reasons why the initial impoundment was improper and therefore should lead to a release of the vehicle.
First, the police officer did not impound his vehicle on the basis of a 45-day impoundment under section 55.1 of the HTA. The police service’s Towed Vehicle Report and Notice of Impoundment that the officer gave to the Appellant on the night his vehicle was impounded had the box “Other” checked off as the reason for the impoundment, with the comment “Drive Prohibited,” and it was indicated to be a 7-day hold, not a 45-day hold under s. 55.1. The Appellant did not know about any 45-day impoundment until he received further documents by courier a few days later.
It may not be clear what grounds the police officer had to initially impound the vehicle. But even with the lack of a proper form being given to the Appellant at the scene, he received the written notice about the 45-day impoundment just a few days later. And though that form was not signed, it had all the details about the impoundment, the reasons, the police officer’s name, and so forth. This sequence of events did not appear to put the Appellant at any unfair disadvantage. As for meeting the requirements of having an impoundment under s. 55(1) of the HTA, it may be that the police officer simply filled out the wrong form or filled it out incorrectly, at the scene of the impoundment. Even if the police officer detained the vehicle for a different reason at first, it is possible that s. 55(1) could still apply to a situation where a police officer at some time later is satisfied that the driver’s licence is under suspension. The evidence and legal analysis in this case does not support a determination by this Tribunal that there is no lawful impoundment for the Tribunal to consider.
The Appellant and his representative also made certain arguments about the Appellant’s rights under the Charter of Rights and Freedoms being violated by the impoundment process and impoundment consequences. The Respondent Registrar’s representative opposed dealing with these arguments because proper notice had not been provided and she would need to have her Ministry’s Legal Branch appear before the Tribunal to properly defend against Charter arguments.
The Appellant’s additional submissions referred to the following Charter provisions:
- section 1 – guarantee of certain freedoms (here, the Appellant also refers to the mobility rights in section 6, and the equality rights in section 15)
- section 7 – right to life, liberty and security of the person
- section 9 – right not to be arbitrarily detained or imprisoned
- section 10 – rights upon arrest or detention
- section 11 – rights upon being charged with an offence
- section 12 – right not to be subjected to any cruel and unusual treatment or punishment
The Tribunal finds that it does not need to hear from the Respondent to decide that none of these Charter rights apply to this situation. The rights under section 9 to 12 deal with situations where someone is arrested, detained, charged with an offence or punished for an offence. The impoundment of a motor vehicle does not involve a criminal or quasi-criminal offence, and it is clearly not covered by these provisions.
Similarly, there is no evidence that any life, liberty of security of a person is at stake here. The Tribunal has already found that no one’s health or safety is threatened by this impoundment.
The closest that the Appellant’s representative came to a section 15 argument was to say that the police may have profiled the Appellant because he has many visible tattoos and he was driving an expensive car. This does not appear to engage any of the prohibited grounds of discrimination listed in section 15 or any similar or related grounds of discrimination.
Finally, the Appellant’s reference to the section 6 mobility rights appears to be based on his position that this section provides a general right to be employed, but this section is about a right to move from one province to another to pursue employment.
In summary, the Tribunal does not support any of these procedural or jurisdictional arguments made by the Appellant and his representative.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the vehicle to the Appellant.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair, Presiding
Eleanor White, Member
RELEASED: August 6, 2015