Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10302/MVIA
CASE NAME: 10302 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.
10302 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Nives Montano
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: July 19, 2016
REASONS FOR DECISION
A hearing was held on July 19, 2016, at Toronto, Ontario, 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 ORDERS THE REGISTRAR TO RELEASE THE VEHICLE.
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: 2004 Volkswagen CLF (the “vehicle”)
Date of Appeal: June 29, 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
A summary of the Appellant’s evidence follows.
The Appellant is on permanent disability after having suffered a workplace injury 12 years ago. She was initially forced to continue working after the accident. She then sustained further injury to her back, hand, knee and feet, which also caused post-traumatic stress disorder (PTSD). The Appellant experiences short-term memory loss, sleeping disorders, is unable to concentrate and endures significant stress.
The Appellant owns her own home. Her single, adult son, the suspended driver at the time the vehicle was impounded, has always lived with the Appellant, and occupies the main floor, rent-free, as the Appellant lives in the basement.
The relationship between the Appellant and her son is quite strained and emotionally challenging. She avoids any conversations with her son to avoid confrontation, fear and backlash.
The Appellant also has an adult daughter who lives in the neighbouring city which is a far distance from the Appellant’s home. The Appellant and her daughter have “no relationship” and have been estranged from each other for quite some time because of the suspended driver.
With regard to her son’s driver’s licence suspension, the Appellant advised the Tribunal that her son has a long criminal record unrelated to his driving offences, but she only became aware of his driver’s licence suspension when she received the Respondent’s submissions regarding her vehicle’s impoundment which contained her son’s driving record. The Tribunal notes that the Registrar’s disclosure was only sent to the Appellant on or about July 15, 2016.
In her testimony, the Appellant advised the Tribunal that she “didn’t let him drive the vehicle,” but she did not elaborate on what she did or said to make it clear to her son that he was not allowed to drive it. He had driven her vehicle only once before, approximately four years ago when the basement to her home wasn’t finished and they were living together. As there was no place to secure her purse in which she kept her car keys, the suspended driver took the keys from her purse and drove her vehicle without permission, but thankfully the vehicle was returned without issue on that occasion.
During the early morning hours when her vehicle was impounded, the Appellant was awoken at 4 a.m. by a phone call from the police. She was “shocked and shaking” after being given the details for bailing her son out of jail the next morning. The Appellant attended at the courthouse and met with counsel and provided a surety for her son who, later that day, was released from custody. The Appellant borrowed against her credit card in the amount of $750 and deposited this amount into her chequing account. She then wrote a cheque to her son’s lawyer to pay for her son’s surety. The Appellant advised the Tribunal that she has incurred a credit card debt of approximately $19,500.
The Tribunal inquired whether the Appellant asked her son about the circumstances regarding the vehicle’s impoundment. Her response was “out of the question to mention it”. There would be “consequences coming from that”.
The Appellant advised the Tribunal that her son started his first official full-time job on the day of the hearing, working as a carpenter. He previously had part-time seasonal and summer jobs. Since he will be earning minimum wage, there is no expectation of him helping her pay for the vehicle’s impoundment. She does not want to discuss this subject with him to “avoid yelling and screaming”.
On the issue of what alternatives the Appellant has to this impounded vehicle, she owns a second vehicle which cannot be used because it needs extensive repairs. The second vehicle has been in an auto body shop since the end of April. She called the auto body shop about the time of the vehicle’s impoundment to inquire how much longer before the repairs would be complete. She was advised that the owner of the auto body shop went on holidays for one month with his family. The repairs to the vehicle ceased until his return. Furthermore, the Appellant is not able to pay for the estimated $3,000 in repair costs, for this second vehicle. She is hoping the auto body shop will buy the impounded vehicle once it is released, for its parts, so that the Appellant can pay the repair costs on the alternative vehicle, because she is going to “move away from Ontario”.
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 ability impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 31, 2016.
Constable Hatfield, with the OPP Port Credit detachment, was affirmed before giving testimony.
At 2 a.m. on June 21, 2016, police set up a roadside R.I.D.E. program on a highway off-ramp in the Appellant’s community. At 2:14 a.m., the Appellant’s vehicle was observed with a lone male occupant. It was stopped by police who determined the driver was intoxicated. The driver was asked to pull over to the side of the road and turn off the ignition. He was asked for identification. Police requested a CPIC report, wherein it was determined that the Appellant’s son was a disqualified driver. He was arrested and taken to the police station. He requested a lawyer and duty counsel was provided. The suspended driver was given a Breathalyzer test, the results of which confirmed that the suspended driver had over .08 mg of alcohol in his blood. He was held in custody pending bail.
Constable Hatfield contacted the Appellant at 4 am. They had a brief conversation regarding the location and time of the bail hearing the next day which required her to provide surety.
At 6:30 a.m., Constable Hatfield served the suspended driver with documents which he refused to sign. He was very uncooperative and did not want to speak to police.
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).
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 reasonable alternative exists for the impounded vehicle and if there is no such 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
Throughout this hearing, the Appellant had numerous episodes of memory loss, as she was mid-sentence in her testimony. The Tribunal occasionally assisted by recapping the discussion wherein the Appellant was able to resume her train of thought. Despite this, the Tribunal found the Appellant to be credible in her testimony about her situation.
During the impoundment period, the Appellant has remained at home due to her limited mobility. She is only able to walk very short distances and her mobility issues also limit her ability to use public transit. The limitations are caused by the injuries sustained to her back, knee and feet which are exacerbated when mounting or dismounting connecting buses. The Appellant’s day-to-day routine came to a halt since her vehicle’s impoundment. She has been unable to shop for groceries or attend to her doctors’ offices to obtain prescription refills. She has been eating the vegetables from her garden and whatever is left in her freezer. She has no friends, and is not social with her neighbours. She cannot rely on her son. She is “living an isolated life” in the basement of her home. The Appellant stated that the closest food source to her residence is at a local gas station or Tim Horton’s.
The first part of the exceptional hardship test requires that the Appellant show that she has no reasonable alternative to her impounded vehicle. This is described further in section 10(4) of the Regulation:
- (4) 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 (emphasis added) 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.
The Tribunal finds that the lack of a reasonable alternative in this case is based on the rare combination of factors – the Appellant cannot use public transit, she cannot afford a rental car or taxi, and she has no friends or family to rely on. Furthermore, because of her health situation, she needs a car to go to medical appointments, refill her prescriptions and get food.
The Appellant has been prescribed three different medications. She ran out of one medication three weeks ago. This medication was prescribed by a psychiatrist and cannot be repeated until she is seen by him. She has been under his care for the past 11-12 years and he practices in the neighbouring city, but it is a fair distance from her home and the only feasible way to get there is by car. He does not refill his prescriptions over the phone. The Appellant is also running low on a three-month prescription which was filled in April.
Due to her permanent disability, she was covered by WSIB benefits. The coverage expired due to a misunderstanding or lack of communication between the pharmacist and doctors who did not submit the approval request prior to the expiry of the benefits. This request has been re-submitted to WSIB which requires 30-45 days for processing. The Appellant does not know whether WSIB approved her continued coverage. The costs of these medications that are covered by WSIB are approximately $600 which she cannot afford without coverage. As mentioned above, the Appellant cannot have her prescriptions refilled and delivered to her, because she must attend the medical practitioner’s office for a follow-up and at the moment, does not know whether the WSIB benefits cover the cost of her medications.
The Appellant’s physical and mental health has been compromised. The Tribunal is of the view that due to the issues revealed through the Appellant’s testimony at the hearing, the Appellant’s access to her medications is critical. There is a significant threat to the health and safety of this person.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Nives Montano, Presiding Member
RELEASED: July, 22, 2016