Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-11-22
FILE:
10511/MVIA
CASE NAME:
10511 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:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
HG, the Appellant’s spouse, as Agent
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
November 17, 2016
REASONS FOR DECISION
A hearing was held on November 16, 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”).
Pursuant to section 50.2 (5) the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
BACKGROUND
A motor vehicle was impounded on October 24, 2016 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: GMC, S/E (the “vehicle”)
Date of Appeal: October 28, 2016
The Appellant was not able to attend the hearing. His spouse HG, attended on his behalf as his Agent. Neither HG nor Mr. Grootenboer wished to adjourn the hearing to a date in which the Appellant could attend.
ISSUE
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. Therefore, this issue before the Tribunal is whether the vehicle should be released on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Appellant
HG acknowledged that the Appellant was driving the vehicle while his driver’s licence was under suspension.
She testified that she and the Appellant own a beef cattle and cash crop farm. She explained that the vehicle which was impounded is a pickup truck which is used for the daily operation of the farm. It is the only pickup truck that they own. The Appellant owns another vehicle, an Equinox, but it is relatively small and is not big or powerful enough to perform many of the functions on the farm for which they would typically use the pickup truck.
The vehicle is normally used to haul wagons of fertilizer to the fields. Putting this job off until December 8, 2016 (the expiry date of the impoundment) would be difficult as they are very dependent on the weather. HG stated that periodically, they need to check areas of their fields which are hard to access even with a pickup truck. They normally put their ATV in the vehicle to access these areas. It wouldn’t be practical to drive the ATV directly to these areas as they are up to 15 kilometres away.
The Appellant’s spouse stated that it is currently harvest time and when something breaks it is very trying to rely on fellow farmers who are also busy. She indicated that neighbours and fellow farmers have offered to help them out, provided that nothing comes up on their own farm.
HG stated that the motor just failed on their corn dryer and they have determined it cannot be fixed and needs to be replaced. It will cost $20,000 to $30,000, and they need the vehicle to go out and look at replacements and transport the one they purchase back to the farm.
The vehicle is also needed to bring the farm garbage to the dump every two or three weeks. HG stated that if they used the Equinox it would take all day making multiple trips to the dump and they wouldn’t necessarily get it all done. The dump is a 15 minute drive away, there is a $10 charge each time you go, and they are only open Tuesday to Saturday, 9 a.m. to 5 p.m. By the time you load, drive, unload and drive home, it takes over an hour for one trip. They had a friend lined up to help them transport garbage to the dump in his truck but something came up and he was unable to come. As a result, the garbage is on hold and the area in which they store garbage is getting full.
HG also stated that they need the vehicle to transport hay for their animals. The next trailer of hay will be needed in about a week.
When asked if renting a pickup truck would be an option, HG stated that most companies would not want to rent them a vehicle as they might damage it on the farm when transporting large equipment. She acknowledged, however, that she has not contacted any rental companies as of yet.
HG filed 10 pictures showing the types of equipment they deal with, their ATV, the back of the Equinox, the corn dryer, and the dirt roads they travel on.
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.
Copy of the Ministry of Transportation records indicating that the Appellant, who was driving the vehicle 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 July 15, 2019.
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 ground that the impoundment will result in exceptional hardship as set out in s. 50.2(3)(d).
According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(3) of the Act, the decision of the Tribunal is final and binding.
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.
According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounded under section 55.1 in the past.
Section 10 of Ontario Regulation 631/98 sets out the criteria that can and cannot be considered when determining if there is exceptional hardship. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. If there is no alternative, then whether the impoundment will result in a threat to the health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Generally, the Tribunal may not consider
- financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
However, the Tribunal may consider the financial or economic loss to any person, the loss of employment or the loss of education, if the owner of the motor vehicle 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.
According to subsection 10(4) of the Regulation, to show that no alternative to the impounded motor vehicle is available, the Appellant must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the period of the impoundment.
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 this case, the Appellant was driving the vehicle, a pickup truck, while his driver’s licence was under suspension for dangerous driving. The vehicle is used for the operation of the farm which he and his spouse own. They have another vehicle, but it is not big enough to perform some of the functions for which they would typically use the pickup truck.
While the Tribunal understands that the impoundment has created an inconvenience, the Tribunal is not satisfied that it qualifies as an exceptional hardship under s. 50.2(5)(d) of the Act. First, the Appellant has not established that no alternative exists for the impounded vehicle, and that every reasonable option has been considered and inquired into. HG acknowledged that friends and fellow farmers have offered to help them out, provided that nothing comes up on their own farms. The Tribunal is not satisfied that the Appellant has fully explored the option of renting a pickup truck, and HG acknowledged that they have not contacted any rental companies to date. Some of the issues HG identified, such as equipment breaking down, were speculative, and the Tribunal considers the garbage issue to be more of an inconvenience than an exceptional hardship. They are able to use the Equinox to look for a corn dryer replacement.
Second, even if the Tribunal was satisfied that there was no alternative to the vehicle, HG did not provide any evidence to substantiate that any financial or economic loss, from not being able to use the vehicle on their farm, will be immediate, significant and lasting. Finally, to the extent that there may be some loss, it would be on the Appellant, as well as his spouse, and the Appellant was the suspended driver at the time of the impoundment.
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
Jacqueline Castel, Member
RELEASED: November 22, 2016```