10210 v. Registrar of Motor Vehicles, 2016 CanLII 50109

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-06-01

FILE:

10210/MVIA

CASE NAME:

10210 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:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 26, 2016

REASONS FOR DECISION

A hearing was held on May 26, 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 Act. 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: 2003, JEEP, W/T (the “vehicle”)

Date of Appeal: May 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 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

During the hearing, the Appellant reiterated the comments on the Notice of Appeal.

She works as a personal support worker and the vehicle is required for her employment. She provides outreach services to seniors in homes located in rural communities where no public transportation is available.

The Appellant stated that the suspended driver was her boyfriend and she had known him for six months. On the day the vehicle was impounded, the Appellant was away on vacation with her parents. The suspended driver was residing at her house to look after her dog and other animals. When she returned from vacation one week later, she learned of the impoundment. The suspended driver told her that he was stopped by police when he was driving to a friend’s place where he planned to do a few repairs on the vehicle while she was away. She stated “I knew he had a past” but he was working and doing well. She described him as a great guy who was responsible and respectful.

With respect to exceptional hardship, the Appellant stated she requires the vehicle as the seniors she cares for rely on her services. Throughout her testimony, she repeated that without the vehicle she risks losing her job and not being able to meet her financial obligations.

The Registrar’s Agent r questioned the Appellant on the statements in her Notice of Appeal where she claimed her employment was at risk with the loss of the vehicle. The Appellant admitted that her employment was not at risk, as within four days of returning from vacation, she was able to borrow money from her family and friends to purchase a used vehicle. Accordingly, except for one day when she missed work, her regular schedule of work has not been affected. She stated that although she works full time hours and earns $15.00 an hour, and pays no room and board to her parents, she has no money. The impoundment fees will add to her strained financial situation and hardship. She remains friends with the suspended driver; however, she is uncertain as to whether or not he will help pay for the cost of 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:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant and the driver at the time of the impoundment, as owners;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on April 4, 2013, for “fail to stop for police officer” under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended for life.

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:

1. 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.

2. 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.

3. 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.

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.

APPLICATION OF LAW TO FACTS

In closing, the Appellant stated that she has suffered exceptional hardship as a result of the loss of the vehicle.

The Agent for Registrar argued that there were several inconsistencies in the Appellant’s testimony and she lacks credibility. Only upon questioning did she reveal the truth about a number of issues, including having an alternative to the vehicle. Thus, the Registrar’s Agent maintained that the ground of exceptional hardship as defined by the Regulation has not been met.

The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.

The Appellant’s testimony established that an alternative to the impounded vehicle exists. She has purchased another vehicle and with the exception of one day loss of work, she has maintained fulltime employment. The Appellant resides with her parents and is not required to pay room and board. While the Tribunal appreciates that the cost of the alternate vehicle may be difficult, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. And furthermore, the financial loss would have to be immediate, significant and lasting.

The Tribunal finds that the evidence does not support the Appellant’s case on the ground of having no alternative to the impounded vehicle. Even if that were proven by the Appellant, the evidence does not show that the other requirement has been met – that her loss is immediate, significant and lasting. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.

Therefore, the appeal 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

Geneviève Blais, Member

Released: June 1, 2016