Licence Appeal Tribunal
FILE: 9842/MVIA
CASE NAME: 9842 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
9842 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: November 4, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on November 4, 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 subsection 50.2 (5) 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: 2006 GMC Envoy (the “vehicle”)
Date of Appeal: October 9, 2015
There were no preliminary matters in dispute between the parties, and the hearing proceeded.
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.
The Tribunal also invited the Appellant to give evidence about the circumstances that led to the driver whose licence had been suspended being behind the wheel of the Appellant’s vehicle at the time of the impoundment.
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 is a single-mother whose grown children no longer live at home. She recently down-sized her accommodations and purchased a house “as is” in August, 2015, the closing of which is to take place on December 8, 2015.
She currently lives in the house, paying rent of $784.00 per month as well as paying all the expenses and upkeep from her own funds. The vendor is out of the country and contributes nothing to those expenses. The roof is in need of repair because it leaks but the Appellant has not had enough funds to do the repairs, yet. She stated that she is also having difficulty paying the monthly rent payments.
She is employed full-time as an Early Child Educator with a local school board.
She is very concerned that she might not be able to provide the sum of $3,000.00 to her lawyer on December 7, 2015, and, possibly, face the risk of not closing the purchase transaction and losing her significant deposit. In addition, she would also have to pay the impoundment fee which she stated was $2,400.00. She stated that she would have difficulty paying that amount, considering her current expenses.
She also has credit card debts that were incurred before the date of the impoundment. She also had to pay a large sum of money as guarantor of another person’s loan.
She works some distance from her residence and, therefore, needs a vehicle to travel to and from work. There is no public transportation available for travel between home and work. Since the impoundment, she has been renting a vehicle to go to work, at a weekly rate of approximately $180.00. Her father drove her to work for a period of four days after Thanksgiving, but, because of his failing eyesight and the need for him to undergo surgery for the problem, he was not able to assist her further.
Her main concern was the possibility of not being able to complete the purchase of her house.
On the date on which her vehicle was impounded, she stated that she was feeling very emotionally upset because of her circumstances. She was at church at the time. She did not feel that she could drive her vehicle, so she asked her friend, whom she had known for three months, to drive her the short distance to her father’s house. She knew that her friend’s licence had been suspended, but allowed him to drive because of her emotional state at the time. The police stopped the vehicle while her friend was behind the wheel, and the vehicle was impounded.
Questioning by the Agent for the Registrar revealed that the Appellant owns another vehicle. That vehicle is registered in the Appellant’s name, but it was her friend who provided the funds to purchase it. It had been impounded previously because her friend had been driving that vehicle, too. In effect, her friend had caused both of her vehicles to be impounded. The Appellant had just paid the impoundment fee on the other vehicle, two days before this hearing and she stated that her friend would pay what he could towards the current outstanding impoundment fee. The other vehicle is still sitting in her driveway. It needs an emissions test. She stated that her friend intended to have another person drive the vehicle for him in his proposed business. She did not wish to drive it because it was too big for her. She would not sell it because, although it is registered in her name, it was her friend who had paid for it.
She also revealed that her friend has a limousine in her driveway that he does not drive but for which he intended to find a driver to transport him around.
The Agent for the Registrar pointed out that the Ministry’s records also revealed that her friend’s driver’s licence had been suspended for life in 1999 so that he could not possibly drive any vehicle.
The Agent for the Registrar referred the Appellant to the records from the Ministry of Transportation that showed that the Appellant owns two other vehicles. The Appellant explained that one was in an accident and was a write-off, and the other was “gone a long time ago”, to quote her testimony.
The Appellant confirmed that she has not missed any medical appointments since the date of the impoundment and that she lives in an area that has 911 emergency call services. She is still able to rent a vehicle during the period of the impoundment.
She also confirmed that her credit card debt, her purchase of the house and the financial obligations to her lawyer all arose before the date of the current 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:
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 regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of fail to remain at an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is 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:
55.1 (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).
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:
- inconvenience to any person, 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.
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
The Agent for the Registrar argued that due diligence was not a factor in this appeal because the Appellant knew that her friend’s licence had been suspended, but knowingly and willingly allowed him to drive her vehicle nevertheless. The Appellant expressed deep regret about allowing him to drive, yet she was aware of his licence suspension at all relevant times.
The Tribunal agrees with the Registrar’s submission on this point.
With regard to the Appellant’s appeal based on exceptional hardship, the Appellant has alternate transportation, by using a rental vehicle. She also has another vehicle registered in her name sitting in the driveway, although it needs an emissions test.
Her current debt load arising from her credit card debt, the purchase of her house and her lawyer’s fees all arose before the date of the current impoundment. They were not the result of the impoundment. This is also her second impoundment. She was able to pay the first impoundment fee arising from the impoundment of the other vehicle.
The evidence revealed that there is no threat to the Appellant’s health or safety that would result from the lack of such alternative even if there were no alternative available.
There is no evidence of the threat of loss of the Appellant’s employment. She remains employed full-time. In addition, because there is an alternative to the impounded vehicle, the Tribunal cannot consider the inconvenience to the Appellant or her financial loss, pursuant to sections 10(2) and (3) of O. Reg. 631/98.
The Tribunal agrees with the Registrar’s submissions. They are fully supported by the evidence presented at this hearing. The Tribunal has much sympathy for the Appellant’s circumstances. Nevertheless, the Tribunal concludes that the Appellant has failed to demonstrate that she comes within the criteria to establish exceptional hardship.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 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
Kenneth W. Koprowski, Vice-Chair
Released: November 18, 2015