Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10245/MVIA
CASE NAME: 10245 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 Cassidy, Vice-Chair
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard teleconference: June 20, 2016
REASONS FOR DECISION
A hearing was held on June 201, 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 “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: 2015 Honda Elantra (the “vehicle”)
Date of Appeal: May 31, 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.
FACTS
Evidence for the Appellant
The Appellant stated she helped her son, the driver of the vehicle at the time it was impounded, re-locate from Alberta in March 2016. When he arrived back to Ontario, he went to reside with his mother, the Appellant. He obtained employment in Hamilton, Ontario but continued to reside with his mother in another community and used her vehicle to drive back and forth to work. He was stopped in a random stop where it was discovered he was driving without a valid licence.
The Appellant stated she did not know her son’s licence had been suspended and it never occurred to her to ask. She assumed his licence was valid. She stated her son has apologized to her for not informing her and has said he will pay her. However, the Appellant advised he has many other things he needs to reimburse her for, and it is she who will have to pay the fees to get the vehicle out of impound before he will be in a position to reimburse her, and the payment of the impound fees will be a hardship for her.
The Appellant owns a home-based sewing business and she needs to go to St. Catherines for supplies since there is no store in her community or in Niagara Falls, which is closer to her home. She stated she is able to get rides from friends from time to time. Further, her 93 year old mother recently moved in with her as well, and her mother has a vehicle which she uses to visit her husband who is in a nursing home in St. Catherines. When her mother’s car is available, the Appellant can and does use it.
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 the driver’s licence of the driver was then under suspension until January 29, 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 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?
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.
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 ground of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
The Appellant has testified that she has access to her mother’s vehicle, and also can and does get rides with friends. Given that her work is a home-based business, she is able to continue to work, notwithstanding the impoundment. It is clear from this evidence that the Appellant has a reasonable alternative to her impounded vehicle. As such, under this legislation, the Appellant cannot pass the first hurdle for showing exceptional hardship, and the appeal on this ground must fail on that basis.
Even if the Appellant could have shown no reasonable alternative to her impounded vehicle, she did not have the evidence to prove that the impoundment caused any financial or employment loss that was “immediate, significant and lasting.”
Ontario Regulation 631/98 outlines the criteria for exceptional hardship. The law requires strict conditions to be met and the Appellant has not met them.
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 Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
_______________________
Patricia L. Cassidy, Vice-Chair
RELEASED: June 24, 2016