Licence Appeal Tribunal
FILE: 10521/MVIA
CASE NAME: 10521 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.
10521 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: Sanjay Kapur, Agent
Heard by teleconference: November 24, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on November 24, 2016, 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 rules 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 impound 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, date of impoundment, and date of appeal in this matter are as follows:
Owner: The Appellant
Motor Vehicle: 2004, DODG, CSX (the "vehicle")
Date of Impoundment: October 26, 2016
Date of Appeal: November 4, 2016
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
During the hearing, the Appellant reiterated the comments on the Notice of Appeal.
The Appellant described the circumstances surrounding the impoundment of the vehicle. The suspended driver is a friend he has known for 20 years. On the day of the impoundment, his friend called the Appellant at work and asked to borrow one of his vehicles. The Appellant stated he was unaware that his friend had past driving violations and that he did not have a valid licence. He now realizes that he made a mistake in trusting him and ought to have been more careful in lending the vehicle.
The Appellant stated that his financial situation is very strained. He has four children who attend school. The Appellant works at two part-time jobs and his spouse works full-time. Nevertheless, in the past months he signed a "Consumer Proposal Agreement" to avoid declaring personal bankruptcy. This financial liability has been stressful for his entire family.
In cross-examination, the Appellant acknowledged that he owns a second vehicle. This vehicle has provided him and his spouse with transportation to attend their employment and carry on their daily activities. He is worried about the additional financial obligations he may have as a result of the impoundment fees, should he not be successful in his appeal. He did concede that, despite his strained financial situation, he is not in default of any financial obligations at this time. When asked about whether or not the suspended driver could assist with the cost related to the impoundment, he stated he has not been successful in contacting him since the incident.
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 of Motor Vehicles regarding the impoundment; and
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on May 5, 2014 of Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver's licence of the driver was then 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.
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 sections 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" and "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.
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.
The above 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 impoundment has created an additional burden to an already strained financial situation. He is concerned about the impact on his family from a situation which was not of his own making.
The Agent for the Registrar indicated that that the Appellant has an alternative to the impounded vehicle as he owns another vehicle, and that exceptional hardship, as defined by the Regulation, has not been met.
The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.
For this appeal to be successful on the exceptional hardship ground, the Appellant must first demonstrate that there is no alternative to the impounded vehicle. Section 10(4) of the Regulation states: "In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period."
In this case, the Appellant's testimony established that a reasonable alternative to the impounded vehicle does exist. The Appellant owns another vehicle which has allowed him to continue his employment and attend to the daily needs of his family. There may be some inconvenience or additional costs, but that is not enough. Therefore, the Appellant is unable to pass this first hurdle for showing exceptional hardship.
Furthermore, even if the Appellant could meet the test of having no reasonable alternative to his impounded vehicle, he cannot meet the other parts of the legislated definition. For example, it cannot be said that the impoundment will result in a threat to anyone's health and safety; nor does the cost of the impoundment on the facts of this case meet the requirement of being a financial loss that is "immediate, significant and lasting." While the Tribunal appreciates that the Appellant is experiencing personal financial difficulties, and the cost of the impound fees may create an additional burden, the evidence shows that the Appellant and his spouse have maintained their employment and there has not been any significant loss of income or a threat to the security of their employment.
Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
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 impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: November 28, 2016