Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10150/MVIA
CASE NAME: 10150 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.
10150 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: April 19, 2016
REASONS FOR DECISION
A hearing was held on April 19, 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 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: 2008, BMW, 5X1 (the “vehicle”)
Date of Appeal: April 5, 2016
ISSUES
As set out in the Appellant’s request for a hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship to his friend pursuant to sections 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
A summary of the Appellant’s evidence follows.
The Appellant testified that the vehicle is a second vehicle which he uses as a pleasure vehicle. However, he allows his friend, “AS”, to drive the vehicle to pick up her daughters from London every other week. AS has joint custody of her daughters. He also acknowledged that he allows AS’ roommate, JP, to drive the vehicle from time to time.
On the morning of April 2, 2016, AS was scheduled to pick up her daughters, however, she was not feeling well as she had been up late drinking the night before. As a result, she asked her roommate, “JP”, to pick them. The Appellant does not know whether AS checked to confirm that JP had a valid driver’s licence before giving him the keys to the vehicle. AS did not attend the hearing to give evidence. The Appellant emphasized that he had no knowledge that JP did not have a valid driver’s licence. He acknowledged that he has never asked to see JP’s driver’s licence.
The Appellant stated that the impoundment of the vehicle will not cause him any type of hardship, as it is a second vehicle for him. However, he indicated that it will cause AS exceptional hardship, since she needs to be able to pick up her daughters from London, and does not have another way of reaching that city from where she resides.
The Appellant stated that he is employed full-time and that AS is also employed. He acknowledged that AS uses public transportation to attend his residence to borrow the vehicle. On cross-examination, he acknowledged that AS’ licence has also been suspended indefinitely, effective April 4, 2016.
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 driver at the time of impoundment had been convicted of impaired driving under the Criminal Code of Canada pursuant to which he was prohibited from driving until November 3, 2016.
Copy of the Ministry of Transportation records indicating that, among other things, AS’ licence was suspended on April 4, 2016 for unpaid fines.
OPP Police Constable B. Bedard (“Const. Bedard”) testified that on April 2, 2016, he stopped the vehicle on Highway 401, travelling east in the Kitchener Waterloo area, for driving 136 km/hour when the speed limit was 100 km/hour. There was a little girl, approximately 3 or 4 years of age, in a car seat, secured to the middle back seat, at the time. Const. Bedard charged the driver of the vehicle, “JP”, for driving while disqualified. JP was prohibited from driving between November 3, 2015 and November 3, 2016 for impaired driving (blood/alcohol content in excess of .08).
Const. Bedard testified that he served the Appellant with the Notice of Impoundment at the Cambridge OPP Detachment. The Appellant told him, at that time, that the primary driver of the vehicle was AS, but that he knew JP also drove the vehicle from time to time. Const. Bedard stated that there was never any discussion of JP taking or driving the vehicle without the consent of AS or the Appellant. The Appellant told him that AS consumed a lot of alcohol the night before and did not feel well enough to pick up her daughter so she asked JP to do it for her, using the Appellant’s vehicle.
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.
The section also provides that the Tribunal may not, except in certain circumstances, consider:
- 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 only if the owner 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.
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 admitted that he allows AS to drive the vehicle and he had knowledge that her roommate, JP, also drives the vehicle from time to time. He was not aware that JP did not hold a valid driver’s licence and was disqualified from driving, but he had never asked to see his driver’s licence. AS asked JP to drive the vehicle to pick up her daughter on the date in question, as she was not feeling well because of the amount of alcohol she consumed the night before.
The Appellant acknowledged that the impoundment of the vehicle does not cause him any type of hardship. It is a second vehicle for him which he uses for pleasure. He is also employed full time. He submitted that the impoundment of the vehicle would cause exceptional hardship to AS, since she needs the vehicle to pick up her daughters from their father’s residence in London every other week.
The Appellant, as owner of the vehicle, is required to show that there is no reasonable alternative for AS, who he submits is the person who ’ordinarily’ uses the vehicle. The Tribunal notes though that her use seemed, on the evidence, to be only every other weekend. However, the Tribunal was not satisfied that reasonable alternatives to the impounded vehicle were considered. The Tribunal recognizes that public transportation or other alternatives may be inconvenient, but inconvenience on these facts, is not a relevant consideration under the legislation. Regardless, AS’ driver’s licence was suspended indefinitely on April 4, 2016 which means she cannot drive the vehicle in any event and renders the submissions pertaining to exceptional hardship on the part of AS moot.
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: April 26, 2016