Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-11-08

FILE: 10495/MVIA

CASE NAME: 10495 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: Bryant Greenbaum, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: November 3, 2016

REASONS FOR DECISION

A hearing was held on November 3, 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.

MOTION TO EXTEND TIME

The Appellant’s vehicle was impounded on September 3, 2016 when her son drove the vehicle while his licence was under suspension. The 15-day time limit for filing an appeal to this Tribunal resulted in a deadline of Monday September 19, 2016. The Appellant filed her appeal on October 7, 2016 and she therefore brings a motion to extend the time for filing her appeal.

The Tribunal first heard the motion for the extension of time, which it granted with reasons to follow. It then continued with the hearing to hear the parties’ evidence and submissions with respect to the appeal.

Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, states:

Despite any limitation of time fixed by or under any Act for giving any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunals under section 11 of any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) Extend the time for giving the notice either before or after the expiration of the limitation of time so limited, and

(b) Give the directions that it considers proper as a result of extending the time.

In making its decision, the Tribunal has been guided by the four part test for reasonable grounds to grant a motion for the extension of time, as set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. These are:

1. A bona fide intention to appeal;
2. The length of the delay;
3. That there is not prejudice to the Registrar; and
4. The merits of the appeal.

The four part test is simply a guide to assist in determining the justice of the case and it does not need to be followed rigidly. A weaker fact situation under one factor may be balanced by stronger facts under one or more of the remaining factors.

The Appellant was informed by the towing truck company, who impounded the vehicle, that there were no appeal processes available. She therefore assumed that the only avenue for financial relief, in relation to the impoundment fees, was to negotiate with the towing truck company after the impoundment period was over. In the interim, the Appellant stated that she did some research on the internet, and made some phone calls, to ascertain if appeal processes were available, despite the information received by the towing company. When she became aware of the appeal processes at the Licence Appeal Tribunal, she filed the Notice of Appeal.

Mr. Kapur argued that the Appellant made inconsistent and contradictory statements concerning the date she discovered she could appeal the impoundment decision. More specifically, the Appellant stated that she became aware of her appeal rights on October 6, 2015, a day before her Notice of Appeal was filed, while also stating that the suspended driver, her son, spoke to the Constable at the impoundment scene and was informed of appeal processes by the police officer as well. The Constable provided testimony, only in relation to this one matter, namely the delay in filing the Notice of Appeal, and the Constable noted that she briefly spoke to the suspended driver about the existence of the Licence Appeal Tribunal, on October 11, 2016, when the driver attended a police station for fingerprints and pictures. The Tribunal finds that the Constable’s evidence is not conclusive regarding the specific date the Appellant became aware of her appeal rights, as the Appellant’s Notice of Appeal would have been filed before the Constable spoke with the suspended driver at the police station. The Tribunal therefore accepts that the Appellant contacted the Tribunal office on or about October 6, 2016 and was made aware of her appeal rights at that time, and then pursued her appeal thereafter in a timely manner.

Furthermore, Mr. Kapur also argued that the delay “highly prejudiced” the Ministry as the Ministry must pay the full 45 day impoundment storage fees if the Appellant’s appeal were to be granted.

At the hearing, after considering the evidence and submissions regarding the motion to extend the time for appeal, the Tribunal concluded that the Appellant should be allowed to file her late appeal. In reaching this conclusion, the Tribunal accepted the Appellant’s testimony as to when she became aware of her appeal rights, and found that the notice of appeal discloses some possible merits to the appeal. Furthermore, while the delay in this appeal could potentially cost the Ministry some extra days of impoundment storage fees if the Appellant were to succeed in her appeal, this is not enough prejudice when weighed against the Appellant’s loss of her right to appeal this impoundment if the time for extending her appeal is not granted. In these circumstances, the Appellant should be permitted an opportunity to present her evidence and submissions about whether she has met the exceptional hardship test for setting aside this impoundment. As such, the Tribunal allowed the motion for the extension of time, and permitted the Appellant to continue with a hearing on the merits of her appeal.

ISSUE FOR THE APPEAL OF THE IMPOUNDMENT

The Appellant appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3) of the Act. Furthermore, the Appellant stated that although she was aware of all possible grounds of appeal, as noted in the legislation and disclosure provided by the Ministry of Transportation, she would only be relying on exceptional hardship.

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded if a person is driving the motor vehicle under a suspended licence, 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:

1. 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.

2. 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.

3. 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).

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 the Tribunal shall consider 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 above types of losses 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.

FACTS

Evidence for the Appellant

The Appellant testified that she lives in “a joint family system” whereby her daughter resides in the home, along with her daughter’s two children. Also, the suspended driver, her son, resides in the home.

The Appellant testified that the impounded vehicle was needed for day-to-day activities, namely getting groceries and dropping her granddaughter off at school. The Appellant is not working and she is a homemaker. Also, the Appellant testified that the closest bus station was a forty-minute walk away.

No health or safety issues were raised by the Appellant in her testimony, nor did she mention any termination of employment by any family member residing in her home, although she did mention a family member having difficulty attending employment on a few occasions.

Regarding financial concerns, the Appellant noted that the impoundment resulted in financial difficulties. She stated she recently “downsized” her home; that she lives off of savings and contributions from her husband (who does not reside with them); and she also receives government benefits.

Also, she confirmed in testimony that:

• She continued to pay her mortgage payments, during the impoundment period, with savings and contributions from her husband;
• She has two other vehicles registered under her name, in addition to the impounded vehicle, a BMW and a Porsche;
• She spent a “significant” amount of money to repair the BMW during the impoundment period;
• Her daughter, who resides in the Appellant’s home, paid for rental car expenses during the impoundment period;
• She paid the impoundment fees to the towing company, in cash, when the impoundment fee ended. In this situation, it would appear that a loan or credit card debt was not required.

Furthermore, regarding the Appellant’s testimony on possible alternatives to the impounded vehicle, the following was noted:

• She borrowed other people’s vehicles, several times, to assist with day to day activities and to drive her granddaughter, who was in grade one, to school;
• Her friends assisted her by driving her granddaughter to school;
• Her daughter, who resides in the home, rented a vehicle that could be used to assist with day to day activities in the home and to assist with driving her daughter to school;
• She repaired an alternative vehicle to the impounded car, namely the BMW, during the impoundment period, and the BMW was available to her during some of the impoundment period.

Evidence for the Registrar

A summary of the Registrar’s evidence follows.

The documents tendered by the Registrar and admitted into the record were as follows:

1. 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 the owner;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving while impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension.

APPLICATION OF LAW TO FACTS

The provisions in section 10 of Ontario Regulation 631/98 are very strict, and require that the owner demonstrate that every reasonable alternative to the impounded vehicle has been considered.

The Appellant gave evidence that people assisted her during the impoundment period with car lifts and with vehicles that she could borrow so the Appellant could attend to her day-to-day activities and her granddaughter’s school transportation. Furthermore, the Appellant had the use of a secondary vehicle for some of the impoundment period. Finally, the Appellant’s daughter rented a vehicle during the impoundment period to assist anyone in the Appellant’s household with their day-to-day activities and to attend to school related commitments.

The Tribunal understands the difficulties that the Appellant is having, and acknowledges the testimony by the Appellant that it is difficult to put a child car seat in rented vehicles or borrowed vehicles, when she must attend to her granddaughter’s school transportation. However, the Tribunal finds that the Appellant has not provided enough evidence to show that this is more than a mere inconvenience.

In any event, even if the Appellant could pass this first hurdle of showing that she has no alternative, she would not be able to satisfy the next step in this legislated test of exceptional hardship, which is to show that the financial loss caused by the impoundment is immediate, significant and lasting. The Appellant has savings, and also obtains financial contributions from her husband. Furthermore, there was evidence to show that the Appellant has funds to attend to other non-essential expenses, including the costs associated with fixing one of her other two vehicles during the impoundment period when a rental car was also available to the family unit. Therefore the Tribunal finds that the financial loss caused by the impoundment is not of such a nature that its effects will be immediate, significant and lasting.

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.

LICENCE APPEAL TRIBUNAL

Bryant Greenbaum, Member

RELEASED: November 8, 2016