Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10063/MVIA
CASE NAME: 10063 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: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: March 15, 2016
REASONS FOR DECISION
A hearing was held on March 15, 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 ruled 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, and date of appeal in this matter are as follows:
Owner: The Appellant
Motor Vehicle: 2010, TOYT, TAC (the “vehicle”)
Date of Appeal: February 24, 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.
She stated that she needs the vehicle to go to work, as she works a night shift at a local factory. Her shift schedule is from 11:00 pm to 6 or 7 am, Sunday through Friday. Although there is access to public transportation, the bus schedule is inconvenient as the bus brings her to work earlier than required. She is unable to rent or borrow a vehicle. She resides with her boyfriend, the suspended driver, and they both work the same shift at the factory located four kilometres from their residence and a walking distance of approximately 40 minutes. She finds walking takes too long and is tiresome given that she is standing most of the time for her eight hour shift.
The Appellant described the circumstances surrounding the impoundment of the vehicle. She had driven to work with her boyfriend. During their lunch break, her boyfriend wanted to go to a local store a few blocks away to pick up snacks and a soft drink. As they had only a 30 minute break, he took the keys from her coat pocket, which was hanging near the front entrance of the work site, and insisted on driving. He told her that he was a faster and better driver as she was too slow driving a vehicle with a standard transmission. As the Appellant was fully aware that he was a suspended driver, she argued with him about driving. She stated they frequently argued about this issue. As her boyfriend tended to be very stubborn, she decided to go with him and he drove the vehicle. A short distance away from their workplace, the vehicle was stopped by the police.
In cross-examination, the Appellant stated that it was a standard practice for her to leave the keys to the vehicle in her coat pocket. She did not see it as problematic. When asked if this was the first time her boyfriend had driven the vehicle since his suspension, she stated that he has done so before; however, not with her present. She had not thought of hiding the keys as she felt it not necessary. She stated “I did not feel I had to go to that extreme, it seemed ridiculous to do that when two people are living together”.
In further questions from the Agent for the Registrar, the Appellant acknowledged that since the impoundment she has not missed any days of work or any appointments.
She and the suspended driver walk together to work and have taken the bus on few occasions. She stated that the bus schedule to get to work late in the evening is inconvenient as the last bus causes her to arrive approximately one hour before the start of her shift. The return trip in the morning is more suitable. As the warmer weather has started, she plans to use her bicycle. She has been taking the bus to buy groceries. Although she has taken a taxi on a few occasions for other matters, she has chosen not to take it to work. The taxi costs would be approximately $15.00 for the two of them; however, she feels that they cannot afford this expense given their income and the future cost of the impound fees. Between the two of them, the Appellant and her boyfriend earn about $30.00 an hour. They have no dependents.
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 and the driver at the time of the impoundment, as owners;
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 on October 2, 2015, of Failing to Stop for Police Officer under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended until April 2, 2017.
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 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:
- 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.
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 she requires her vehicle as she works night shifts and alternate means of transportation are inconvenient and difficult.
The Agent for the Registrar indicated that that the Appellant has an alternative to the impounded vehicle and that exceptional hardship, as defined by the Regulation, has not been met. Although the loss of the vehicle for her and her boyfriend is inconvenient, there has been no loss of income.
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.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle. Section 10(4) 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.” Then, if there is no alternative available, the Tribunal may consider whether the impoundment will result in a threat to health or safety, or in an “immediate, significant and lasting” loss (in the nature of finances, employment or education) to any person ordinarily transported by the motor vehicle.
In this case, the Appellant’s testimony established that an alternative to the impounded vehicle exists. Although inconvenient, the Appellant can access a public bus to get to work, an alternative she has used on a few occasions. Although she works a night shift, there was no evidence of any security concerns with her walking to work, as she is accompanied by the suspended driver who has the same work schedule. With the warmer weather, she plans to use her bicycle. While the Tribunal appreciates that the cost of the impoundment fees may be difficult, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. And furthermore, the financial loss would have to be immediate, significant and lasting.
The Tribunal finds that the evidence does not support the Appellant’s case on the ground of having no alternative to the impounded vehicle. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
Therefore, the appeal has failed.
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: March 16, 2016