Licence Appeal Tribunal
FILE: 9868/MVIA
CASE NAME: 9868 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 subsection 55.1(3) of the Act
Appellant -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Eleanor White, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: November 24, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on November 24, 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”).
After hearing the evidence and submissions, and pursuant to subsection 50.2 (5) of the Act, the Tribunal confirmed the impoundment of the Registrar of Motor Vehicles (the “Registrar”) on December 4, 2015, with reasons to follow.
These are the reasons for the Tribunal’s Order.
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 Mazda M3I (the “vehicle”)
Date of Appeal: November 3, 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 subsection 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 recalled the events of the day of the impoundment, stating that she and her spouse were readying their home for sale. As the first showing was scheduled for later in the day, her spouse was working on doing last minute touches to the home. The Appellant’s sister picked her up and together they went to visit their mother, who was recently placed into long term care.
The Appellant left her own car in the driveway. Her spouse reportedly needed just one item for the chore at hand, and drove the Appellant’s car to the store. He was pulled over by the police on a rural road in the county where they live, and the vehicle was impounded on October 24, 2015, for a period of 45 days.
The Appellant stated that she did not think to take the car keys with her when she left the family home as her spouse had not driven the car since he was released from jail in April 2015. According to the Appellant, the conditions of her spouse’s return to the home had included the absence of any drugs or alcohol and the prohibited use of any vehicle until his licence was reinstated.
Since the impoundment of her vehicle, both the Appellant and her spouse have not had access to another vehicle. They live in a small community with no public transit. The community does, however, have emergency and 911 services. Both parties have used their work holiday time and have relied on family members for transportation to work. The Appellant works as a housekeeper at a local hospital in a nearby community, which is approximately a 35-minute drive from her home. Many days her father has driven from his home, located in the same city as the Appellant’s employer, to the Appellant’s home to take her to work. A colleague has also helped the Appellant with rides to or from work, but differences in shift times make that quite inconvenient. The Appellant’s sister has also been able, on occasion, to help with grocery shopping. The Appellant has one son still living at home and he is able to get to work by paying a friend to pick him up and take him to his job. The Appellant is nervous of losing her employment if she is unable to attend her shifts. She has not spoken with any supervisor about her difficulties despite a 10-year work history, because she is embarrassed by the nature of her difficulties.
The Appellant was asked if she had considered whether to put forward the ground of “stolen” on her appeal; that is, that the vehicle was “stolen” by her spouse at the time the vehicle was impounded. The definition of stolen, within the context of the Act, was explained. This was not an option she was comfortable to pursue.
The Appellant responded to cross-examination by the Agent for the Registrar, specifically to a query about a second vehicle showing as registered to her. The Appellant’s other son, who lives in Northern Ontario, had used the 2000 purple Chrysler NLX for some years. The vehicle was scrapped two to three years ago.
The Appellant stated on cross-examination that she had set aside an amount of approximately $1,000 towards the cost of the impoundment.
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 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.
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 of dangerous driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 29, 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 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 subsection 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.
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
In closing submissions, the Registrar’s Agent agreed that the impoundment was inconvenient for the Appellant but noted that she has managed to keep her life going, and has been able to get some help from her father and a work colleague. There is no threat to the health or safety to anyone in the community or to parties regularly transported by the impounded vehicle.
The Registrar’s Agent also chose to give submissions, in some detail, on the issue of “stolen”. However, since the Appellant stated at the hearing that she did not wish to pursue this ground of appeal, there is no need for the Tribunal to consider his submissions on this point.
The Tribunal finds that the Appellant has not established exceptional hardship as defined in the Act. The evidence provided in testimony by the Appellant shows some financial hardship and inconvenience for her and her family.
The legislative test set out in the Regulation is detailed and strict. Section 10 first requires that the owner of the vehicle prove that there is no alternative to the impounded vehicle.
In exceptional hardship cases, it is often the first hurdle that is the most difficult to prove as the Appellant must show that no alternative to the impounded vehicle is available.
The Tribunal finds that the Appellant has found, to date, some reasonable alternatives to the impounded vehicle. She has continued to be employed. The alternatives may not have been convenient for the Appellant, nor her father or co-worker, but they have proved workable. The Appellant has definitely been inconvenienced by the impoundment and only through the assistance of others, particularly her sister, has she been able to keep the home operating, get groceries, run errands, etc.
There are no identifiable health or safety concerns for the Appellant or any member of her household or family that have been created or exacerbated by the impoundment of her vehicle.
Only if no reasonable alternative exists does the Regulation permit the Tribunal to look at factors such as financial or other loss. Having found that there are alternatives to the impounded vehicle, the Tribunal finds that the Appellant has not established 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 subsection 50.2(5) of the Act, the Tribunal confirmed the impoundment of the Appellant’s motor vehicle, and it will remain at the impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Eleanor White, Member
Released: December 21, 2015