Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10263/MVIA
CASE NAME: 1263 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: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: June 28, 2016
REASONS FOR DECISION
A hearing was held on June 28, 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 HTA. 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: 2007 Honda UCL (the “vehicle”)
Date of Appeal: June 6, 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 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
The Appellant testified that his son was driving the vehicle at the time it was impounded, that he received notice after the impoundment and that he did not know his son had taken the vehicle or that his son’s licence was suspended.
The Appellant stated he had left the keys to the car on the dining room table where all of the keys are left and his son helped himself to the keys and drove to his uncle’s house.
The Appellant stated he had not been aware that his son’s licence had been suspended until he received the Notice of Impoundment. He stated his son always takes the bus to work. The Appellant stated he had no knowledge of the fact his son had been convicted of impaired driving, driving while disqualified or failing to remain at the scene of an accident. He elaborated that, in their religion, consumption of alcohol is frowned upon. He opined that it was likely out of embarrassment that his son never revealed his driving record or that his licence was suspended.
The Appellant stated that while his son took his vehicle without his permission, he would not be prepared to state the vehicle had been stolen. Further, he stated that he understands the legislation and is in agreement with the consequences for his behaviour but is pleading for leniency because the impoundment is imposing considerable hardship for him and his family given that his daughter is being married within a week and the inconvenience of not having the vehicle was significant. In addition, he has budgeted very carefully for the wedding, and the cost of the impoundment was not something he foresaw or is ready for. He will have to get a loan to pay the impound fees. Likewise, to rent a car is to spend money he is not prepared to spend.
The Appellant lives in a suburb outside of Toronto, and works in another suburb as a transit driver. He starts his day very early, around 4:00 a.m., and when the vehicle was first impounded, he missed two days of work before making arrangements to have his daughter drive him to work. He did not lose any pay for the two days he took off because he took them as sick days. Now his daughter is getting up and driving him to work before beginning her day and he takes the bus home at the end of his shift. It is very inconvenient but, he concedes, it is workable.
In cross-examination, the Appellant acknowledged that 911 is available where he resides, that he is still employed and has not lost any pay due to missed shifts resulting from the impoundment.
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 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 then under suspension until February 26, 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 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 health or safety. In the present case, there is no issue about anyone’s health or safety being affected by this impoundment.
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 which the Appellant has been able to do in this case.
APPLICATION OF LAW TO FACTS
As the Appellant stated, he has made arrangements to get to and from work while his vehicle is impounded. His daughter is assisting him by getting up early and driving the Appellant to work before returning home and getting ready for her own work day. The Appellant then takes public transit back home. As the Appellant stated, these arrangements are workable, albeit inconvenient. The Tribunal finds that this evidence clearly does not meet the test of showing that there is no alternative to the impounded vehicle.
But even if the Appellant could have proven that he has no reasonable alternative to the impounded vehicle, he would still need to prove that the financial loss caused by the impoundment was “immediate, significant and lasting,” and there was no evidence presented that would meet this test.
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 L. Cassidy, Vice-Chair
RELEASED: July 07, 2016