10203 v. Registrar of Motor Vehicles, 2016 CanLII 50111

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-06-01

FILE:

10203/MVIA

CASE NAME:

10203 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:

Chantal Proulx, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 24, 2016

REASONS FOR DECISION AND ORDER

A hearing was held on May 24, 2016, by teleconference, to consider the Appellant’s appeal according to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).

According to section 50.2(5) of the Act, the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will be detained at the impound facility for 45 days.

BACKGROUND

The Appellant’s motor vehicle was impounded on April 22, 2016, pursuant to section 55.1 of the Act.

The owner, motor vehicle, and date of appeal in this matter are as follows:

Owner: Appellant

Motor Vehicle: 2012, Mazda 5

Date of Appeal: May 4, 2016

In her Notice of Appeal, the Appellant indicated that she was appealing on the ground of exceptional hardship. She explained that since her motor vehicle was impounded, she has experienced “great hardship.” She noted that she has a young child who needs to be driven to and from school as the bus service where she lives is inadequate. As well, she visits her mother during the weekend to assist her and it is challenging for her to get to and from work on time.

While there was some initial discussion at the hearing about the motor vehicle being “stolen” and the Appellant “exercising due diligence” as being possible grounds in this appeal, it became apparent that the facts did not support those grounds, and the Appellant was pursuing only the ground of exceptional hardship, as set out in section 50.2(3)(d) of the Act.

ISSUE

The Tribunal must decide if it should order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship for the Appellant.

FACTS

Evidence for the Appellant

The Appellant and her husband have been living apart since March 2015. However, he stays at the family home once or twice a month to spend time with their young son. On April 21, 2016, the Appellant’s husband stayed at the family home. Although the Appellant usually drives her car to work, on April 22, 2016, she got a ride with one of her older sons. Her husband drove their young son to school in her motor vehicle. He was stopped at 10:13 a.m. and, because his driver’s licence was under suspension as a result of a Criminal Code conviction, the Appellant’s motor vehicle was impounded for 45 days.

The Appellant testified that since her motor vehicle has been impounded, it has been challenging for her to get to work. She explained that the bus service where she lives is limited and she has to take three buses to go to work. When she misses her bus connection, she arrives late at work. She has advised her manager of her situation and she is doing her best to arrive on time.

In addition, the Appellant testified that it has been difficult for her to drive and pick up her son from school. The Appellant and her three older children have had to modify their schedule to help her ensure her youngest son can get to and from school and that someone is there to care for him.

The Appellant confirmed that there are three motor vehicles registered to her name: the 2012 Mazda that was impounded, a Mazda 2006 that she sold to one of her sons (although he has not paid her the full amount yet and it is still registered to her name) and the motor vehicle her other son drives, for which she co-signed. The Appellant explained that her two older sons use the other motor vehicles that are registered in her name because they work different shifts and the buses are not always available when they finish work. She stated that the Mazda 2006 is not in great condition and they will soon have to get rid of it.

The Appellant explained that it has been difficult for her to take care of her mother since her motor vehicle has been impounded. She has only been able to see her once. To get to her mother’s place, she took a bus and a friend gave her a ride the rest of the way.

The Appellant indicated that finances are challenging for her currently and she is concerned about the costs related to the impoundment of her motor vehicle. Although her husband indicated he would do his best to assist her with these costs, she testified that she is not confident he will pay the fees.

In response to a question from the Tribunal, the Appellant confirmed that she was aware her husband had lost his driver’s licence in the past because he was caught driving while under the influence of alcohol. She explained that she helped him pay for his lawyer’s fees and the fines. She believed he made an error in judgment, and with the proper assistance and counseling, he would “get back on track.”

Evidence for the Registrar

The Registrar filed written submissions with the Tribunal on May 19, 2016. These documents, which contain information relating to the impoundment of the vehicle, were admitted into the record on consent of the Appellant. The documents are as follows:

1. A copy of the Notice to Registrar indicating that the Appellant’s motor vehicle was impounded on April 22, 2016;

2. A copy of the driver record search for Criminal Code convictions regarding the Appellant’s husband;

3. A Plate Search for the impounded vehicle;

4. A copy of the Notice of Impoundment stating that the Appellant’s motor vehicle was impounded for a period of 45 days effective April 22, 2016;

5. Plate searches for the Appellant confirming that a Mazda 2006 is registered to her name and that a 2010 motor vehicle is registered to her name and her son’s name;

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded. 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 of a motor vehicle that is impounded may appeal the impoundment to the Tribunal; however, the owner may only appeal on four specific grounds set out in subsection 50.2(3) of the Act.

(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 appeals on the ground that the impoundment will result in exceptional hardship, as set out in paragraph 50.2(3)(d).

According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(8) of the Act, the decision of the Tribunal is final and binding.

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.

According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounded under section 55.1 in the past.

Section 10 of Ontario Regulation 631/98 sets out the criteria that can and cannot be considered when determining if there is exceptional hardship. First, the Tribunal must consider if no alternative exists for the impounded vehicle.

If there is no alternative, then the Tribunal must consider if 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.

Generally, the Tribunal may not consider:

• financial or economic loss to any person,
• loss of employment or employment opportunity to any person, or
• loss of education or training.

However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education if the owner of the motor vehicle 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.

According to subsection 10(4) of the Regulation, to show that no alternative to the impounded motor vehicle is available, the Appellant must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the period of the impoundment.

The Regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.

APPLICATION OF LAW TO FACTS

The Appellant has the onus to prove her appeal on a balance of probabilities.

According to section 10 of the Regulation, the Tribunal must first consider if no alternative exists for the impounded motor vehicle.

The Tribunal finds that the Appellant has not demonstrated, on the balance of probabilities, that there is no alternative for the impounded motor vehicle. The Tribunal is mindful that the Appellant lives in a community where access to public transportation may be more limited. However, the Tribunal finds that the Appellant has been able to adequately mitigate the loss of her vehicle by making alternative arrangements to manage her various activities. She has been taking the bus to get to work, she took the bus and had a friend drive her part of the way to visit her mother, and her three older children modified their schedules to ensure their younger brother is driven to school and picked up afterwards.

The Tribunal acknowledges that taking three buses to get to work can be challenging for the Appellant and that it has resulted in her being late for work when she misses a bus connection. However, the Appellant has not missed any days of work so far, except for participating in this hearing. She explained that she has had to work overtime to make up for the times she arrives late at work. The Appellant testified that her supervisor is aware of her temporary situation and so far has been accommodating. The Tribunal finds that the evidence supports that the Appellant has been able to find an alternative to the impounded motor vehicle.

In addition, the Tribunal finds that the Appellant has two other vehicles registered to her name and address. The Tribunal recognizes that the Appellant’s two sons drive these cars; however, the fact remains that they are registered to her name and that she may have access to them. The Tribunal is mindful that the Appellant sold the Mazda 2006 to one of her sons; however, based on her testimony, he has yet to fully pay her for it and it is still registered in her name. While the Tribunal acknowledged that she may not wish to inconvenience her sons, the fact remains that there are two other vehicles registered to her name.

The Appellant testified that one of her sons gave her a ride to work on April 22, 2016, and she has been able to get to work by using public transportation. While there is no doubt that the Appellant finds it inconvenient to rely on others and to take three buses to get to work, the facts do not support a finding that she does not have an alternative for the impounded motor vehicle. Therefore, the Appellant has failed to prove on a balance of probabilities that no alternative exists for the impounded motor vehicle.

The Tribunal acknowledges that the Appellant is concerned about the costs associated with the impoundment at the end of the 45-day period because of her financial situation. While the Tribunal appreciates that the cost of the impoundment fees may be difficult to pay, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. Furthermore, the Regulation requires that this financial loss would have to be immediate, significant and lasting. The Tribunal finds that the Appellant has been able to continue working and therefore there has been no significant or lasting loss.

The Tribunal finds that the Appellant did not establish exceptional hardship. The criteria prescribed under section 50.2(3)(d) of the Act has not been met, therefore the appeal fails on this ground.

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, to remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Chantal Proulx, Vice-Chair

RELEASED: June 01, 2016