Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9862/MVIA
CASE NAME: 9862 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: November 17, 2015
REASONS FOR DECISION
A hearing was held on November 17, 2015, at Toronto, Ontario, 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 ORDERS THE REGISTRAR TO RELEASE THE VEHICLE.
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 KIA SED (the “vehicle”)
Date of Appeal: October 29, 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
The Appellant lives in a medium sized town with the suspended driver and her 20 year old son who is in receipt of an Ontario disability pension.
The Appellant was driving her vehicle when it got a flat tire. Afraid to drive it herself, she asked the suspended driver to take it to the garage to have the tire filled. The vehicle was pulled over by police and impounded.
The Appellant has two part time jobs in a small city which is an approximate twenty to thirty minute drive from her home. Her first job, house cleaning, starts at nine a.m. From 11:45 a.m. to 1 p.m., she works as a lunch monitor in a school. In addition, once a week, she volunteers at a nursing home, also in the small city, assisting with a dementia patient.
The Appellant lived in the small city where she works until approximately five years ago when she moved to the small town where she now lives. She moved on the advice of her son’s paediatrician who told her that her son, who suffers from an anxiety disorder, would benefit from the move. She has continued with the jobs in the larger municipality which she held before the move. Her son attends a special school and is picked up and returned home by a school bus. However, the Appellant noted that her son has had past incidents of anxiety where she has had to take him to hospital.
The Appellant nets approximately $160 a week from her two part time jobs. Her son pays $400 rent to her from his disability pension. The Appellant is also in receipt of welfare and testified that her budget is very tight and she must rely on food banks. The suspended driver is also currently in receipt of welfare and the Appellant anticipates that his application for disability will be approved shortly.
The Appellant pays a substantial amount for her car insurance. Asked by Mr. Kapur why she has continued to pay the insurance while the vehicle is impounded, she testified that the insurance company told her she needed to continue to pay the fee; she also testified that even if she stopped it, she would have to pay two months insurance when it was reinstated and this would be no financial gain for her. She testified that she had called her insurance company and noted that she understood continuity of coverage would be important because her insurance rates would decrease if she had a good driving record.
There is no public transit directly between the town where the Appellant lives and the city where she works. In order to take public transit, she would be required to make her way to another small city and from there travel first to a large city and then make a backtracking connection to the small city where she works, a three hour trip. The only way she could reach the initial small city would be to either take a taxi or to hitchhike.
Since the impoundment, the Appellant has had a ride from a neighbour who works in a city close to the one in which the Appellant works. She is able to take a municipal bus between the two cities to reach her morning house cleaning job. However, the neighbour’s job ends on November 20, 2015. The people who employ her to clean their house drive the Appellant to her job at the school. She has been able to get a ride home from a co-worker, but must wait until the school day finishes and consequently arrives home approximately two hours later than she would when she was driving. She noted that her son can become anxious and require medication and that she normally was home before he arrived home from school. However, there have been no health-related issues since the impoundment. She also noted that she cannot fully rely on the ride home as her co-worker has not been well.
The Appellant testified that the cost of a cab from her home to her first job would be approximately $35 one way. She has taken a cab home once since the impoundment. Asked how she reached her work before she owned the impounded vehicle, the Appellant explained that she had previously owned another vehicle and that she had also purchased an electric scooter, which proved to have inadequate battery time. She often hitchhiked to reach her jobs.
The Appellant expressed her concern about her ability to pay the impoundment fees. She noted that the suspended driver does not have the means to pay her, even if she did choose to pursue legal action for reimbursement of her 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 Applicant 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 operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 3, 2015.
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, 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
With respect to the issue of exceptional hardship, section 10 of O. Reg. 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 O. Reg. 631/98 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 impoundment period. Only if there is no alternative available may the Tribunal consider if the impoundment will result in a threat to the health or safety of an individual.
The Appellant in this case is a welfare recipient with two part time jobs. The Tribunal notes that the Appellant described her work, which she has continued after moving from the municipality in which the jobs are located, as significant to her, notwithstanding the fact that the income is quite modest at $160 net per week. To date, the Appellant has been able to reach her work with the assistance of a neighbour who has driven her to a neighbouring municipality from which she has been able to take municipal transit. However, that option will no longer be available to her after November 20, 2015. The Appellant has had a ride home from work from a co-worker; however, she noted that this ride brought her home after her son arrived home from school. Her son suffers from an anxiety disorder but has had no issues since the impoundment began.
The question before the Tribunal is whether there are alternatives available to the Appellant after November 20, 2015. The Appellant did describe a public transit option; however, because that option requires the Appellant to find a means to travel to another municipality to begin the trip and because that trip would be three hours long, the Tribunal finds that this is not a reasonable option to reach a job that the Appellant begins at 9 a.m.
The Appellant described two other options available to her: the first is to take a taxi
at the cost of $35 a day. The Tribunal notes that this option is also not reasonable: it would cost the Appellant $175 a week, more than her net income of $160. Mr. Kapur questioned the Appellant very thoroughly as to why she has continued to pay her vehicle insurance while the vehicle is impounded. The implication of the questioning was that the Appellant could free funds if she were not paying the insurance. While the Tribunal notes that the cost of the insurance is significant, the Tribunal accepts the Appellant’s response that she has continued to pay the insurance on the advice of her insurance company.
Finally, the Appellant testified that if her vehicle was not returned to her that she would have no choice but to hitchhike to work. In his closing statement, Mr. Kapur submitted that this has been a “tried and tested method” for the Appellant. Notwithstanding the fact that the Appellant may in fact have used this means of reaching her workplace before and did present it as an option herself, the Tribunal does not accept hitchhiking 20 km as a reasonable alternative to the use of the impounded vehicle. Moreover, if the outcome of the loss of the vehicle is that the Appellant must hitchhike, the Tribunal has no difficulty in determining that the impoundment results in a threat to health and safety; there are clear and obvious safety risks for a female hitchhiking alone. Further, the Tribunal notes that the loss of the vehicle has meant that the Appellant does not arrive home before her son returns from school. While the Appellant testified that her son has had no anxiety incidents since the impoundment, the Tribunal notes that she is normally at home to assist him and therefore determines that her absence increases the health and safety risk to him. Mr. Kapur noted that her son takes a school bus; the Tribunal notes that while her son may take the bus to school that the Appellant’s vehicle has been used to transport him when needed to hospital in the past.
Based on the above evidence, the Tribunal finds that the Appellant’s appeal succeeds: she has no reasonable alternatives to the impounded vehicle and the loss of the vehicle does result in a threat to health and safety.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: November 18, 2015