Licence Appeal Tribunal
FILE: 9796/MVIA
CASE NAME: 9796 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
9796 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: October 6, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on October 6, 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 “Act”).
The Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the Act. As a result, the Appellant’s motor vehicle will remain detained at the impoundment 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: 2003 CHEV MLS (the “vehicle”)
Date of Appeal: September 16, 2015
ISSUES
As set out in the Appellant’s Notice of Appeal (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 of Motor Vehicles (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 maintains that the loss of the vehicle will cause exceptional hardship as she requires the vehicle to “do various things”. According to the Appellant, the vehicle is required to allow her to drive her grandson, the suspended driver, for occasional self-employed work as a window washer.
The Appellant resides in a town of approximately 21,000 inhabitants. During the hearing she stated that her 28 year old grandson, the suspended driver, has resided with her for 12 years. For the past five years her grandson has struggled with alcohol problems which have resulted in criminal convictions and two life time driver suspensions. Although he is seeking treatment, he remains unable to work full time and live independently. She has supported him with housing and drives him to various jobs and appointments.
On the evening of the impoundment, a long time friend of her grandson was visiting at the house. Very late in the evening, her grandson took the vehicle to drive his friend home and was stopped by the police operating the RIDE program on his return home. The Appellant was sleeping at the time and she stated she had not given her grandson permission to use the vehicle.
In cross-examination, the Appellant reluctantly agreed that she is aware of her grandson’s three previous suspensions in 2010 and 2011 when a vehicle registered in her name was impounded. When asked what measures she had taken to protect herself from a similar occurrence, she simply stated that, despite her grandson’s history of taking the vehicle while his licence was suspended, she was not concerned about him taking the car. She has always kept the keys to the vehicle on a hall rack or in her purse which is left on the hall rack near the front door. She admitted that her grandson had access to the vehicle keys, which were easily accessible. Although she knew that her grandson was drinking with his friend during the evening, she was not concerned when she retired for the night as it was a nice summer evening and they were having a good time. She accepts that she did not take steps to protect herself on this occasion.
In further cross-examination, the Appellant stated that since the impoundment she has borrowed a car from her son. However, she is finding this arrangement difficult as her son has limited her use of the car for essential trips only. She is an active person and is not pleased that she has to postpone social outings.
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:
A copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant at the time of the impoundment, as owners;
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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on February 4, 2011, of Impaired Driving and on November 25, 2013, of Blood/Alcohol Content in excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was, on each conviction, 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.
O. Reg. 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, 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 also 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 closing, the Appellant stated that the loss of the vehicle is causing her exceptional hardship.
In his summary statements, the Agent for the Registrar asked the Tribunal to confirm the decision of the Registrar. Regarding exceptional hardship, the Registrar’s Agent pointed out that under section 52.2 (4) the Appellant is precluded from appealing on the grounds of hardship as, on three occasions, a vehicle owned by the Appellant has previously been impounded.
Some of the evidence raised the possible argument that the vehicle was stolen. Although the Appellant stated that she had not given her grandson permission to use the vehicle, the Tribunal did not hear from the Appellant that she explicitly told him that he could not drive her vehicle. The Appellant knew that he was drinking during the evening and she was not careful enough to ensure the car keys were not accessible to him. The Appellant did not advocate that the vehicle was stolen, but that is not always necessary for the Tribunal to grant an appeal on the grounds of “stolen.” However, in this case, the Appellant did not provide sufficient evidence or arguments to justify the Tribunal proceeding on this ground. The Tribunal notes that the Appellant’s vehicle had already been impounded three times because of the grandson having driven it while suspended. With this background, the Tribunal is not persuaded that this vehicle was stolen, within the meaning of the impoundment legislation, when the evidence appears to be that the Appellant had not clearly told her grandson that evening that he was not to drive her vehicle and the Appellant left her car keys easily accessible to her grandson.
The onus is on the Appellant to establish its grounds of appeal as provided in section 50.2(3) of the Act. Subsection 50.2(4) of the Act 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.
With respect to exceptional hardship, the evidence is clear that a vehicle owned by the Appellant has been previously impounded on three occasions due to the actions of the same unlicenced driver. As such, the Appellant is prohibited an appeal under section 50.2 (4) and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail. In any event, even if that section did not apply, the Appellant’s situation clearly did not meet the detailed requirements in the Regulation for finding exceptional hardship.
Therefore, the appeal has failed.
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 impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: October 19, 2015