Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9334/MVIA
CASE NAME: 9334/MVIA 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: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: February 10, 2015
REASONS FOR DECISION
A hearing was held on February 10, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for a total of 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: 2001 Hyundai XG3 (the “vehicle”)
Date of Appeal: January 16, 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
A summary of the Appellant’s evidence follows.
The Appellant stated that he and J. S. were travelling home from the Collingwood area, that he was tired and asked J. S. if he could drive while the Appellant had a coffee. His evidence is that J.S. said he could drive and so they switched so that the Appellant could refresh with a coffee. He stated that in the short time it took for him to drink the coffee, his vehicle was pulled over by the police. His evidence is that it was at that time that J.S. advised him that his licence had been suspended for impaired driving. The Appellant stated he hadn’t asked J.S. if he had a valid driver’s licence; that he never thought of it.
The Appellant stated he is pleading exceptional hardship because he needs a vehicle to get to work. He stated his place of work is constantly changing from one site to another, that he has to be at work and ready for 6:00 a.m. and that public transit is not an option. He stated that according to his research, the earliest he could get to work would be 6:05 which would make him late since he needs to be at work and ready for 6:00 a.m.
In cross-examination, the Appellant acknowledged that public transit in his community does begin at about 4:20 a.m. but that he would need to transfer and he believes a transfer would make him late. He elaborated that while he could, perhaps, get to his present workplace, using public transit, by 6:05 a.m., that would put him there late since he needs to be there and ready by 6:00 a.m., the reality is that his workplace is subject to change and he cannot be certain when public transit would get him to workplaces as yet unknown.
The Appellant stated that, since the impoundment of his vehicle, his father has been on holidays and, therefore, he has had the use of his father’s vehicle to get to work. He stated that his father will be getting home on Monday February 16, 2015, and will need his vehicle to get to the Appellant sister’s home by 8:00 a.m., when she leaves for work, to get his grandchildren off to school. While he conceded that his father might be able to drive him to work before attending at his sister’s home, the Appellant stated he would have to pay his dad to do so and that he could not afford to pay him.
The Appellant stated he resides with his parents and that his mother also has a vehicle but that she works as well and leaves the house at 6:00 a.m. so is not able to assist him with transportation either. Finally, when asked if he had considered renting a vehicle, the Appellant stated he had looked into it but that it was too costly.
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 Applicant 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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 10, 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 Applicant here appeals on the basis of section 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 evidence clearly established that the Appellant is the owner of the impounded vehicle, that the vehicle was being operated by an individual with the owner’s knowledge and consent and that the driver’s licence of the individual operating the vehicle was under suspension at the time the vehicle was impounded. The evidence established that the operator’s driver’s licence was suspended on December 11, 2014, as a result of him having been convicted of impaired driving, contrary to the Criminal Code of Canada
The Appellant appeals the impoundment of his vehicle, alleging it is causing exceptional hardship, however, he has failed to establish that. Rather, the Appellant has the option of taking public transit to his current workplace. The evidence is that it is available to him and would get him to his current workplace in time for work. Evidence provided by the Appellant in the form of a letter from his employer, states the Appellant needs to be at work and ready at 7:00 a.m. The Appellant’s testimony was that he had to at work and ready for 6:00 a.m. Since he did not have any witnesses other than himself, there was no way to determine the actual start time for his day. The evidence is that public transit would get the Appellant to his workplace no later than 6:05 a.m. which would be more than sufficient if his start time is as stated by his employer. It would be late if the Appellant starts, as he stated, at 6:00 a.m. In any event, he does have other options.
The Appellant resides with his parents, both of whom have vehicles. While the Appellant stated his mother leaves for work at 6:00 a.m., his father is retired. The Appellant’s evidence is that his father needs his vehicle to get to the Appellant’s sister’s home by 8:00 a.m. and while he could drive the Appellant to work, he would have to pay him and can’t afford to. His evidence was also that renting a vehicle would be too costly.
Since the impoundment, the Appellant has had the use of his father’s vehicle, with whom he resides, since his father has been on vacation. The vehicle is due to be released on February 24, 2015 so the period of time he would need to make alternate arrangements for is 2 weeks. The letter provided by the Appellant’s employer advises he earns $32.33 per hour and is paid weekly. His assertions that he cannot afford to rent a vehicle for 2 weeks or even pay his father to drive him to work for 2 weeks simply is not persuasive. Given the criteria the Tribunal must consider, as prescribed by the legislation, the Appellant had failed to prove his case.
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 Applicant’s motor vehicle, and it will remain at the impound facility for a total of 45 days.
LICENCE APPEAL TRIBUNAL
Patricia Cassidy, Vice-Chair
Released: February 19, 2015