Licence Appeal Tribunal
FILE: 9759/MVIA
CASE NAME: 9759 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.
9759 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: September 21, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on September 21, 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) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. 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 VOLK A5J (the "vehicle")
Date of Appeal: August 31, 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
A summary of the Appellant's evidence follows.
The Appellant states that it is extremely difficult for him to get to and from work and to deliver his daughter to and from school. Although he had access to a company vehicle for a brief period of time, he no longer has that option.
He is able to get to and from his work, as a roofer, with a friend who helps him out. This friend also assists with dropping his daughter off at school and picking her up.
The Appellant advises that this arrangement causes hardship and inconvenience to him and his friend because often they have to alter their work hours in order to accommodate him and his daughter.
Unfortunately for the Appellant, this is more a situation of inconvenience than it is of exceptional hardship. The relevant sections of the Act were explained in detail to the Appellant and their impact on both him and on the Tribunal in terms of the relief that can be granted to him. The Appellant offered no more evidence beyond what had been set out on his Notice of Appeal.
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 October 14, 2015.
The Appellant admitted all of the facts as set out by the Registrar.
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.
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)(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.
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, 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
With respect to the issue of exceptional hardship, section 10 of the regulation, referred to above, is very specific. The Tribunal must first consider whether the Appellant has an alternative to the impounded motor vehicle. The Appellant has very candidly stated that he had for a short time, access to a company car. After that, a friend has helped out. The Appellant has not missed work, nor is he unable to deliver his daughter to school, though the alternate arrangements are a matter of inconvenience. There is no evidence of a threat to health or safety of any person ordinarily transported by the motor vehicle. The Tribunal notes as well that the Appellant lives in a major urban centre where there is public transportation is available. While the Tribunal is sympathetic to the situation in which the Appellant finds himself, there has been no evidence of exceptional hardship as defined by the Act and the regulation, and therefore the Appellant's appeal under that ground must fail.
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: September 23, 2015