Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-12-14
FILE:
10549/MVIA
CASE NAME:
10549 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 McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis Agent
Heard by teleconference:
December 13, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on December 13, 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: 2008, Ford FMS (the “vehicle”)
Date of Impoundment: November 3, 2016
Date of Appeal: November 23, 2016
As noted above, the Notice of Appeal was received on November 23, 2016, five days after the expiration of the 15-day period in which to file an appeal. The Appellant filed a Notice of Motion for an extension of time for the filing of the appeal. She explained that she was late filing her appeal because she did not have the required filing fee. At the outset of the hearing on December 13, 2016, Ms. De Santis stated that the Registrar would not oppose the motion; therefore, the hearing proceeded.
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
On her Notice of Appeal, the Appellant stated that on the evening that the impoundment occurred, she was out with her boyfriend, with whom she lives. She had a couple of drinks. She had had her appendix out a few days previously and had to take some painkillers. She was not able to drive so her boyfriend offered to drive. She did not ask about the status of his driver’s licence. She explained at the hearing that she had no idea that his licence had been suspended, or the extent of his driving record, until she received the Registrar’s documents in advance of this hearing. Her ‘heart dropped’ when she saw his driving record.
The Appellant stated that her son, who is 13 years old, lives with his father in a neighbouring municipality. She would normally pick her son up on Friday evening and he would spend the weekend with her. Since the impoundment, she has seen her son every other weekend as she is dependent upon his father dropping him off on Saturday morning and picking him up on Sunday evening. She has no family or friends that live nearby.
The Appellant works in the shipping and receiving department of a large retailer. She makes $13.25 an hour. She was off work for a short period of time after her surgery, but explained that she has not missed work as a result of the impoundment. She lives approximately two kilometres from work and has been able to walk or take public transit. However, she did state that she has not been able to work the entire period after the impoundment because of the pain from the surgery and her inability to do some of the physical work required in her job. Taking public transit or walking did make the pain worse. The post-surgery pain has stopped in the last two weeks or so.
The Appellant has missed a follow up appointment for her surgery at the hospital because it was difficult to get to; she went to work instead. She does have a family doctor, 911 service is available and she has a psychiatrist who is very supportive. She suffers from depression and is on medication. Her psychiatrist makes himself available by phone and by text. She has missed some work because of her depression, and the impoundment issue has worsened the situation. All of this has taken a toll on her.
Her boyfriend is not currently working, having been laid off about a month ago.
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 January 7, 2015 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
The onus is on the Appellant to establish her 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. The Appellant was quite candid in her testimony. She has been able to get to work. She has access to public transit and is able to walk to work when necessary. The days missed were largely a consequence of her appendix surgery and her pre-existing depression. She has continued to see her son, with the help from her son’s father, though clearly not as often as she would like; and without her car, their activities are curtailed when he is with her. Although she has missed a follow-up medical appointment after her surgery, she has not established that she considered and inquired into every reasonable option to get to that appointment, choosing to go to work instead.
Based on the evidence, the Tribunal concludes that there are adequate arrangements available to the Appellant to do without her vehicle during the impound period, as noted in section 10(4) of the Regulation, and as such, she has a reasonable alternative to the impounded vehicle.
The Tribunal does not doubt that the impoundment has made the Appellant’s difficult personal situation even more challenging. It appears that she was totally unaware of her boyfriend’s driving record, and further, he cannot offer her financial assistance on her impoundment costs.
Further, while the Appellant’s situation is difficult, it cannot be said that the impoundment will result in a threat to her health and safety. There is 911 service available in her municipality. She does have access to her family doctor and, importantly, to her psychiatrist. The Tribunal understands that the Appellant is also experiencing personal financial difficulties, which pre-date the impoundment, and the cost of the impound fees will create an additional burden even though she has been able to continue working. However, the grounds for relief under the Act are very narrow, in particular, the ground of exceptional hardship. The inconvenience and additional costs which result from the impoundment are not enough to meet the meet the strict requirements of the particular provisions of the Act, which require proof that any financial loss be “immediate, significant and lasting”.
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
Patricia McQuaid, Vice-Chair
Released: December 14, 2016