Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-11-02
FILE:
9821/MVIA
CASE NAME:
9821 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 L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant:
self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
October 21, 2015
REASONS FOR DECISION
A hearing was held on October 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”).
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 a total of 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: 2005 Chrysler 3TR (the “vehicle”)
Date of Appeal: September 25, 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.
FACTS
Evidence for the Appellant
The Appellant stated that, on September 5, 2015, while she was at work, her employer advised her she would have to leave work because her car was being towed. Upon leaving work to deal with the situation she learned from the police of her husband’s driving record. Her evidence was that she did not know his licence to operate a vehicle was suspended and she did not know his history of driving offences.
Her evidence is that while at work, she cannot use her cell phone. She is not able to make or receive calls. She works shift work, on an assembly line, and cannot be disrupted while on the job. On the night of the impoundment, she was working an afternoon shift when her husband telephoned her boss who, in turn, told her that her car was being impounded. Her evidence is she was shocked by that news; she believed her car was in the lot at work where she had left it. It is now her understanding that her husband had walked to the plant where she works and took the vehicle to pick up dinner for her and surprise her as he has done many times. She continued to assert that she did not know his driving history or that he did not have a valid licence.
The Appellant stated she has known her husband for about four years but they had only married in June of this year. She believed he had valid driver’s licence because he has an actual licence which states it will expire in 2019. He has driven her vehicle many times, usually with the Appellant in it. She elaborated that her husband moved into her home after they were married in June of this year and that his licence still has his former address on it. She didn’t think that was significant, however, because she has not bothered to change her name on her licence since she was married although her husband has asked her to do so.
The Appellant’s evidence is that she is walking to work, regardless of the shift she is on, and it takes her about an hour each way to walk it. She has not bothered with public transportation to and from work; she works in the middle of the G.M. plant and the bus stop is several minutes away from her work station. She is able to walk 10 to 15 minutes to a grocery store but is not able to get the size of an order she normally would make. Further, she used to drive her husband to work – he works in a nearby municipality and works steady days from 6:30 a.m. to 2:30 p.m. – but now he walks about 20 minutes to catch a ride with a co-worker and, if that co-worker misses work then her husband also misses his shift.
Despite the inconvenience of the foregoing, the Appellant’s primary concern is her inability to care for her mother as she done for a long time. Her mother lives in a retirement home in a nearby municipality. The Appellant’s routine included visiting her mother 3 to 4 times a week and assisting her by taking her to medical appointments, picking up prescriptions, doing her laundry, bathing her, etc. While some of those services can be purchased at the retirement home, they are expensive and her mother cannot easily afford them. Further, she elaborated that her mother is dependent upon her; she is the only family she has to assist her.
Since the impoundment, she has only visited her mother twice. Her mother has to pay to have someone else bathe her and pay to have them do her laundry which the Appellant has always done. Further, she had re-scheduled as many appointments as possible and is now paying to have her medications delivered. The Appellant stated her mother has missed appointments, including a doctor’s appointment where she was scheduled to receive an injection and she missed an appointment for a C.A.T. scan as well. Further, her evidence is that her mother was hospitalized for three days in the critical care unit and the Appellant was only able to visit once. Her mother was taken to hospital by ambulance, admitted and spent three days there.
The Appellant stated it is too expensive to take public transit to visit her mother and it would not assist her in carrying out many of the services she provides her mother, such as getting her laundry done, picking up prescriptions and taking her to her many appointments. Her evidence is that between the bus fare to the GO Train station, the cost of the GO Train and the bus fare at the other end, it would cost $22.00 one way to visit her mother. One visit would cost $44.00 and she still could not perform the services she routinely did when she had a vehicle. She does not have access to another vehicle.
Finally, the Appellant acknowledges that she is not spending money on gas for her vehicle but is mindful that she will face a significant pay-out to get her vehicle out of impound and she is trying to save as much as she can to ensure she will be able to afford to do so.
Evidence for the Registrar
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 19, 2017.
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
In view of the availability of public transit for the Appellant, even though it may be somewhat costly when used to visit her mother, the Tribunal finds that there are alternatives to the impounded vehicle. Even if it can be said that the Appellant did not have reasonable alternatives to her vehicle, the evidence is that the Appellant is continuing to work; her employment and her income have not been affected by the impoundment in any significant way, if at all. Her husband also has not suffered any significant loss, and in any event, the Regulation does not permit the Tribunal to consider the suspended driver’s loss.
Further, while the Tribunal is satisfied that the impoundment has certainly created a great inconvenience to both the Appellant and to her mother who relies on the Appellant and her vehicle, there is no evidence that the Appellant or her mother is suffering any financial, employment or educational loss that will have a significant and lasting impact. Their great inconvenience does not meet the definition of exceptional hardship under the Act. Furthermore, there is no evidence the impoundment is affecting the health or safety of anyone; while the Appellant’s mother might benefit from having more frequent visits from her daughter, there is no evidence of this causing any threat to her health or safety.
The Tribunal was very impressed with the Appellant’s concern and devotion to her mother, as well as the manner in which she has dealt with the inconvenience of not having a vehicle to use. This is a very sad fact situation, but the Tribunal must apply the law, which provides a very detailed definition of what qualifies as 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
Patricia L. Cassidy, Vice-Chair
RELEASED: November 2, 2015