Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10147/MVIA
CASE NAME: 10147 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.
10147 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: April 21, 2016
REASONS FOR DECISION
A hearing was held on April 7, 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: 2011 Hyundai Accent (the “vehicle”)
Date of Appeal: March 30, 2016
PRELIMINARY ISSUES
The Appellant had not received the disclosure package from the Registrar in advance of the hearing. The Respondent suggested that the documents could be re-sent by courier and the hearing adjourned for a few days to allow sufficient time for delivery. The Appellant advised that he had taken a day off work for the hearing and would have to take another day off if the hearing was rescheduled. The Appellant agreed to service of the documents by email. The hearing was recessed for 1 ½ hours so that the documents could be sent and reviewed by the Appellant. The documents were received and reviewed by the Appellant and the hearing continued.
Ms. De Santis advised that she intended to call the police officer who was at the scene at the time of the impoundment to give evidence; however, no notice had been given to the Appellant of her intention to have the officer testify. Given the lack of proper notice, the Tribunal did not permit the witness to testify.
ISSUES
The Appellant’s motor vehicle was impounded on March 27, 2016, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on the ground of exceptional hardship.
Therefore, the issue for the Tribunal to consider is as follows.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship as provided in section 50.2(3)(d)?
FACTS
Evidence for the Appellant
The Appellant was very forthright in his testimony. He owns two vehicles. He lent the impounded vehicle to his son’s fiancée so she could drive to and from work. She has had the use of that vehicle for approximately two years. Their intention was that she would assume ownership of the vehicle soon, once she could afford the insurance. The Appellant and his wife work at the same place and work the same shift so they travel together, using his second vehicle.
The Appellant learned of the impoundment the day after it happened. His son and his fiancée were initially too scared to tell him about it. They told him that she was driving her brother to London where he goes to school. Her brother asked if he could drive and she said yes. She had no idea that her brother’s licence was suspended and she was shocked when she found out about his conviction. She was in the passenger seat when the car was stopped by police.
The Appellant stated that he believed that the fiancée was the only one who ever drove the car, but he did not know, in fact, whether or not she had allowed her brother drive the car before. From the Appellant’s perspective, “she took good care of the car”.
Since the impoundment, the fiancée has either taken the bus to work or borrowed his son’s car. His son, who lives with the Appellant, drives a company vehicle for his work, and so he is able to lend his vehicle to his fiancée.
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 was detained and 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 failing to remain at the scene of an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended until October 2, 2016 for impaired driving;
Copy of the Ministry of Transportation records indicating that the Appellant is the owner of a second motor 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
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 Tribunal is considering the Appellant’s appeal 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.
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
As noted above, the Tribunal found the Appellant to be honest and forthright in his evidence. He quite clearly stated that he does not, except for occasional weekend use, drive the impounded vehicle. His future daughter-in-law has been using the vehicle for her daily use, for approximately two years. He and his wife use the second vehicle.
He expressed concern that the impoundment is causing inconvenience to his son’s fiancée, though she appears to have reasonable alternatives for her transportation needs.
Regarding exceptional hardship, the detailed provisions of section 10 of Regulation 631/98 are very specific and very strict. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment and narrowly limits what the Tribunal can consider as exceptional hardship.
The first hurdle is whether there is a reasonable alternative to the impounded vehicle. The evidence is clear. Both the Appellant and his son’s fiancée, who is the person who ordinarily drives the impounded vehicle, have reasonable alternatives. The Appellant who appears very supportive of his family’s needs was concerned for the fiancée’s inconvenience, which seems marginal. But in any case, inconvenience is not “exceptional hardship” as defined by the legislation. The facts before the Tribunal do not support the appeal on this ground.
The only financial loss suggested by the Appellant is the cost of the impoundment which he is understandably concerned about. It is undoubtedly a financial consequence. But on these facts, even if the Tribunal found that the Appellant passed the first hurdle and there was no alternative to the impounded vehicle, the Tribunal cannot conclude that there is, in this case, a resulting financial or economic loss, which is “immediate, significant and lasting”, as required in the legislation. Fortunately, all members of the Appellant’s household seem to be working, including his son’s fiancée who had been driving the car on a daily basis for about two years. The Appellant stated that they had not yet discussed who would contribute to the impoundment costs, pending the outcome of the appeal.
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: April 25, 2016