Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9811/MVIA
CASE NAME: 9811 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: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: October 13, 2015
REASONS FOR DECISION
A hearing was held on October 13, 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), 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: 2007 BUIC RZV (the “vehicle”)
Date of Appeal: September 25, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), 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 testified that she was not aware that her son, the suspended driver in this case, did not have a valid driver’s licence. The Appellant’s son has been living with her for almost two years. During that period, she has never asked him about the status of his licence. On the day the vehicle was impounded, he had medical appointments as well as an appointment related to his job. Because she was too busy at work to drive him, she asked him if he would like to take her vehicle. A co-worker drove her into work that day. Her son was pulled over by police for speeding as he drove to pick up the Appellant from work and the Appellant’s vehicle was impounded. The Appellant acknowledged that her son has had drinking problems in the past and that she made a mistake by offering him the use of her vehicle, stating “it was stupid not to discuss” the status of his licence with him.
The Appellant testified that she cannot afford to pay the costs associated with the impoundment which she has been advised will total approximately $3,300. She is the sole income earner in her household, earning approximately $1,600 to $1,800 net income every two weeks. Her monthly expenses total approximately $3,100. Her son, who has been in rehabilitation, has not worked for a year although his employer has offered to re-employ him when he finishes his current rehabilitation program. The Appellant indicated that she does not believe she has sufficient room to put the impoundment costs on her credit card.
Since the impoundment, the Appellant has been able to get to her work, which she noted, in her Notice of Appeal, is approximately 30 km from her home. On two occasions, she was able to borrow vehicles for a few days from neighbours. However, one of the borrowed vehicles was damaged in the parking lot at her employment and will cost approximately $1,000 to fix. She noted that no one has acknowledged damaging the vehicle and that even if she reports the incident to her insurance company, the deductible would be $500. She is now taking public transportation to work. She does own a motorcycle but testified that it is not in working order and that she cannot afford the estimated $500 in repair costs.
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 driving with a blood alcohol content in excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended for life.
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).
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, 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.
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 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 the Appellant has an alternative to the motor vehicle. Section 10(4) of Regulation 631 requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, the Appellant testified that she has been able to find reasonable alternatives to the impounded vehicle. She has been able to borrow vehicles from neighbours on two occasions and has also been able to use public transportation. There was no evidence to indicate that the loss of the vehicle would result in any health or safety issues.
The Appellant provided details of her current income and expenses and testified that she cannot afford the impoundment costs which she expects to total $3,300. The Appellant’s son is not currently working, although the Appellant testified that his former employer is prepared to re-instate him upon completion of his rehabilitation program. The Tribunal recognizes that the impoundment costs are a significant worry to the Appellant. However, the provisions of Regulation 631/98 allow the Tribunal to consider financial loss to an individual only if there is no alternative available to the impounded vehicle.
The evidence indicates that the Appellant does have alternatives available to use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Member
Released: October 21, 2015