Licence Tribunal
Appeal en matière de permis
FILE: 10209/MVIA
CASE NAME: 10209 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: Sonia De Santis, 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”).
Pursuant to section 50.2 (5) the Tribunal sets aside the impoundment. As a result, the Registrar is ordered to release the Appellant’s motor 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: 2007, VOLK, CTJ (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 pleaded for the return of the motor vehicle as she suffers from serious health issues and requires the vehicle to attend appointments and provide assistance to her 84 year old mother who has limited mobility and is ill. The Appellant suffers from severe depression and anxiety. She has severe panic attacks which occur unexpectedly. She has back problems resulting from deteriorating discs which limits her mobility. She has qualified for the issuance of an Accessible Parking Permit. As a result of her medical conditions, she has been under doctor’s care for 20 years. She finds it too overwhelming to use public transportation. She provided, in evidence, a medical note, dated May 3, 2016, from her doctor, who stated that she requires the use of her vehicle to attend medical appointments and assist in the care of her mother who is elderly and ill.
The Appellant is a 61 year old single parent who resides alone and is in receipt of a disability pension. Her financial situation is very strained as she lives on less than $10,000 a year. She has one son who lives on his own and works part-time as a security guard while attending school.
The Appellant stated that on the evening of the impoundment, she had driven her son to work a late night shift. As he does not have a vehicle, she drives him to work from time to time to help out. She stopped at a coffee shop and encountered a former friend, the suspended driver, whom she had not seen for seven years. As she was about to leave the parking area in her vehicle, he recounted to her the recent death of a friend. The Appellant was distraught about the conversation as it brought back sad memories of her own loss of family and friends. She found herself very unsettled and had an anxiety attack. She got out of the car to get some air and without her asking him, the suspended driver got into the driver’s seat and decided to drive her home. She was taken aback and when she asked him if he had a licence, he told her he did have his licence. Within ten minutes of driving, the vehicle was stopped on a roadside check. Upon being told by the police officer that the driver did not have a valid licence, the Appellant began to cry uncontrollably and was very upset that the vehicle was impounded. She was left stranded and had to call her son at work for assistance. He was able to borrow a vehicle from his work to drive her home.
Since the impoundment of the vehicle, the Appellant has virtually confined herself to her apartment. She attended one appointment with her doctor the week after the impoundment as a friend was able to drive her and she obtained the medical note in support of her appeal. Her doctor has agreed for now to renew her medication requirements without seeing her. She has an upcoming appointment with a respiratory specialist, which she will likely miss, and if she needs to re-book, there will be a further delay in obtaining an assessment. She has not been able to do regular grocery shopping as she cannot afford the cost of a taxi. A small convenience store in her building has allowed her to buy milk and bread. This has been costly and provides her with no fruits or vegetables.
In cross-examination, the Appellant was asked if she has sought assistance from her case worker who manages her disability pension. The Appellant stated she was unaware of this assistance and would be willing to look into the matter, but was not optimistic that they would be willing to pay for the cost of taxis. She has not aware of the WheelTrans service in her area. She reiterated that her medical conditions severely limit how much she can handle at any one time. She has been so upset since the impoundment that her medical condition is worse due to the hardship she is experiencing with the loss of the vehicle. She will be unable to pay the cost of the impoundment fees and feels the situation is unfair.
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 and the driver at the time of the impoundment, as owners;
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 on April 20, 2004, of 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:
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.
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 lastinthe 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 she requires the vehicle for transportation due to her medical condition. The loss of the vehicle has caused her significant hardship.
The Agent for the Registrar indicated that the Appellant has not considered other options that may be available to her to attend to her appointments and daily needs. In addition, even if the Appellant had no alternative to the vehicle, the loss related to finances, employment or education is not significant and lasting, as the Appellant is in receipt of a disability pension which has not changed.
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 Tribunal found the Appellant credible, and accepts that the Appellant has missed regular medical appointments which she needs to attend, and for which she requires a vehicle. She was a victim of an incident over which she had little control. During her testimony, the Appellant was clearly distraught and at times overtaken by her set of circumstances and required time to regain composure.
The Registrar asserted that the Appellant has not looked into alternate transportation options. The Tribunal notes that the test is one of “every reasonable option,” not all possible alternatives. The Tribunal finds the solutions proposed by the Registrar‘s Agent are not reasonable in the circumstances. The Tribunal also finds that the Appellant’s medical problems confirmed by her doctor are such that the use of public transportation is not a reasonable alternative. Her very limited income makes the use of a taxi service prohibitive. The Tribunal finds there is no reasonable alternative transportation available to the Appellant.
If there is no alternative to the impounded vehicle, then the Tribunal may consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle. The Appellant is reliant on the vehicle as a life line. This enables her to manage her daily needs and to attend medical appointments so that her health and medication requirements can be monitored. Considering the entire circumstances of this case, the Tribunal finds that the impoundment is causing a threat to the Appellant’s health, and the Appellant’s situation meets the definition of exceptional hardship.
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
Geneviève Blais, Member
Released: May 27, 2016