Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10092/MVIA
CASE NAME: 10092 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: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: March 31, 2016
REASONS FOR DECISION
A hearing was held on August 11, 2015, 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 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: 2000 SUZI GVT (the “vehicle”)
Date of Appeal: March 14, 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
The Appellant is the single parent of a 5 year old daughter. She testified that she relies on the use of a vehicle to transport her daughter to and from school.
The Appellant owns a second vehicle. However, that vehicle is currently inoperable. The Appellant testified that the vehicle occasionally would stop while she was driving it. The problem worsened in late 2015/early 2016. The vehicle was towed to her mechanic who estimated the cost to repair it would be $5,000, which the Appellant testified she could not afford. The mechanic found and sold her the impounded vehicle for $1,000. The Appellant stated she bought this vehicle because it had four wheel drive and all weather tires.
For 16 years, the Appellant has worked in a retail store located at a mall which is within easy walking distance of her home. On the day of the impoundment, the Appellant had dropped her daughter off at a friend’s house for a play date but was called and asked to pick her up because she was not well. Because the Appellant could not leave work to pick up her daughter, she called her family to see if her mother, father or brother could pick her up. When they were unable to, she called her daughter’s father.
The Appellant testified that she had no relationship with her daughter’s father until her daughter was 3 years old. She described him as unreliable, stating that whenever she has asked him for help it has been “hit and miss”. He is not working and pays her no child support. When she asked him for help on the day of the impoundment, he noted that her vehicle had the child’s car seat in it and suggested that he go to her work and then use her vehicle to get the daughter. The Appellant gave him her car keys and the keys to her condominium where he would stay with the daughter until the Appellant returned from work. She pointed out to him where the insurance was kept in the vehicle but did not ask to see his licence. She testified that she told him to make sure he had his licence with him but she did not ask to see it. She stated that she has never known anyone with a suspended licence and it did not occur to her. When her vehicle was impounded that day, it was a “total shock”.
The Appellant’s daughter attends school an approximate 20 minute walk from the Appellant’s home. Because school begins at 8:40 a.m. and the Appellant’s work shift begins at 9 a.m., her normal routine is to drop her daughter off at school and then drive to work. The school day ends at 3:15 but the earliest the Appellant finishes work is 4:30. She testified that her employer has allowed her to take her lunch break to allow her to pick up her daughter whom she then drives to her parents’ home where her mother takes care of the daughter. At the end of her work day, she picks up her daughter from her parents’ home and drives to her own home.
Since the impoundment, the Appellant has relied on help from her family to pick her daughter up for her at the end of the school day. Her brother lives with her mother and father and they share one vehicle. Because her family is not always available, she has, on occasion, had help from a friend. In the mornings, family has also been able to help take her daughter to school, but the Appellant has also had to take a taxi on occasion in order to get to work on time. On days when the Appellant is not scheduled to work, she has been able to walk her daughter to school. While the Appellant lives in a major municipality with public transit, there is no bus service on the school’s street. Public transit on the days the Appellant works is not an option; she would be late for work if she used it.
The Appellant has missed no work since the impoundment although she has used some sick days. Asked if had informed her employer about her situation, she stated she had not because she knew, from past experience, that her employer would not be flexible, stating that allowing her to take a late lunch was the limit of her employer’s flexibility. She would simply be told to find another job if she could not work the required shift hours.
The Appellant testified that her annual income is approximately $40,000. She has a mortgage and receives no assistance from her daughter’s father. She stated that she cannot afford to pay the impoundment fees which she estimated to be $4,000.
Asked if she had considered selling the vehicle, she indicated that she does not know what she will do and is waiting to see the outcome of this appealEvidence 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 3 below;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of dangerous driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended for life.
Copy of the Ministry of Transportation records indicating that in addition to the impounded vehicle, the Appellant owns a plated 2008 Mazda M3S.
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 section 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
With respect to the issue of exceptional hardship, Section 10 of Regulation 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) of Regulation 631 requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
The Appellant testified that she requires a vehicle in order to transport her 5 year old daughter. The Tribunal notes that the Appellant owns another vehicle, a Mazda. Mr. Kapur submitted that the Appellant has not thoroughly investigated the option of repairing this vehicle. The Appellant’s testimony was that she purchased the impounded vehicle at the cost of $1,000 because she could not afford the Mazda’s cost of repair which her mechanic estimated would be $5,000. The Tribunal notes that Mr. Kapur suggested that the impounded vehicle was purchased by the Appellant for the use of the suspended driver. The Tribunal dismisses this theory as total speculation unsupported by the evidence. It does not find it unreasonable that the Appellant, who has a modest income of $40,000, decided to purchase a second vehicle at a low price rather than repair the existing vehicle. Nor, given her testimony that the vehicle was towed to her mechanic, does the Tribunal find it unreasonable that the Appellant has not sought additional quotes on its repair.
The Tribunal notes that the Appellant also indicated that she cannot afford the estimated $4,000 in impoundment fees. The Tribunal cannot consider this cost when determining whether or not the impoundment will result in exceptional hardship.
While the prohibitive cost to repair her second vehicle may eliminate this as an alternative to the use of the impounded vehicle, the evidence is that the Appellant has been able to find other alternatives.
The Appellant works within a short walking distance of her home; however, she relies on the use of her vehicle to transport her 5 year old daughter to school and to her parents’ home. The Appellant’s mother takes care of her daughter after school on days when the Appellant, who works different retail shifts, must work. The Appellant lives in a major municipality with extensive public transit; however, she testified that there is no transit on the street of her daughter’s school. And, because school starts at 8:40 a.m. and the Appellant must be at work by 9:00 a.m., transit is not an option if the Appellant is scheduled to work on school days. However, since the impoundment, the Appellant has had assistance from her family members, primarily her brother, who has used the parents’ vehicle to pick up the daughter from school. While her parents’ vehicle and her family members are not always available, the Appellant has also had occasional assistance from friends. In the mornings, the Appellant has either had assistance from her brother or has taken a cab to take her daughter to school. On days when she was not scheduled to work, she has been able to walk her daughter to school, an estimated 20 minute trip. The Tribunal acknowledges that the Appellant has had to make some effort to schedule rides and has experienced some inconvenience. However, she has missed no work and her daughter has not missed school.
The evidence indicates that the Appellant does have alternatives available to use of the impounded vehicle, and therefore has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Member
RELEASED: April 5, 2016