Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10220/MVIA
CASE NAME: 10220 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: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: June 2, 2016
REASONS FOR DECISION
A hearing was held on June 2, 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: 2009, Ford SPE (the “vehicle”)
Date of Appeal: May 16, 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 (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 testified that he works in the construction industry as a concrete finisher and requires a car to get to and from various job sites which are often located outside the town in which he resides. Since his vehicle was impounded, he has been using “ride share” at a cost of $25 per day to get to work. This is expensive for him and sometimes his rides are late. Sometimes his foreman or supervisor drive him to the job site which is inconvenient for them. His ex-wife has also helped him out on occasion, but she runs a daycare and this is not convenient for her.
The Appellant stated that renting a vehicle is not an option because he does not have a credit card and he has no savings. He still owes one car rental company money and this company will not let him rent vehicles from it until he repays the money owing. Public transportation usually is not an option as he has to get to the various job sites very early in the morning and the job sites tend to be in new subdivisions which are often not accessible by public transportation. His company has vehicles which employees can use; however, they will not let him use their vehicles because he has been identified as an insurance risk on his driver’s abstract because of the number of accidents he has gotten into where the vehicles have had to be written off.
The Appellant stated that on the day his vehicle was impounded, he drove to work and then let JW, the suspended driver, borrow his vehicle for the day to do errands. On that day, co-workers drove him to and from the job sites. JW is on welfare and does not have the money to assist him in getting his car released from impoundment or in renting a vehicle.
The Appellant testified that he has a lot of financial pressures, including difficulties paying his rent, child support payments and various bills.
The Appellant also testified that he is under a lot of stress and takes medication for stress, anxiety and ulcers. He acknowledged that he started taking this medication before his vehicle was impounded.
The Appellant stated, in response to a question from Ms De Santis, that his ex-wife lives walking distance from his residence and that he does not require a vehicle to see his children. He stated that he has a good relationship with his ex-wife and that she is like a “rock” who he can rely on.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents filed 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 pursuant to which the driver’s licence of the driver was then under suspension until September 3, 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?
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
Section 10 of the regulation is very strict and requires that the owner demonstrate that every reasonable alternative to the impounded vehicle has been considered. The Appellant loaned his vehicle to JW to do errands on a work day (for the Appellant). The Appellant has been managing since his vehicle was impounded by relying on ride share, his ex-wife, his foreman/supervisor or co-workers to drive him to work or to and from various job sites. The Tribunal recognizes that the alternatives may be inconvenient and that ride share is expensive to the Appellant. However, the Tribunal is bound to apply the legislation as it is written and cannot consider inconvenience to the Appellant nor can it, in these particular circumstances, consider financial loss to the Appellant.
The Tribunal finds that the Appellant has not met the onus under section 10(3)(a) of the Regulation, namely to “demonstrate that no alternative to the impounded motor vehicle is available.”
Therefore, the appeal on the grounds of exceptional hardship has failed.
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
Jacqueline Castel, Member
RELEASED: June 07, 2016