10186 v. Registrar of Motor Vehicles, 2016 CanLII 50116

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-05-12

FILE: 10186/MVIA

CASE NAME: 10186 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 THE DECISION AND ORDER

ADJUDICATOR: Geneviève Blais, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: May 9, 2016

REASONS FOR DECISION AND ORDER

A hearing was held on May 9, 2016, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).

As a preliminary matter, the Appellant brings a motion to be permitted to file her appeal outside the 15-day appeal period set out in the Act. Since a motion for late filing involves a preliminary review of the merits of the case, rather than divide the process, the Tribunal heard the motion and the appeal on the merits concurrently.

The Tribunal’s decision is to confirm the impoundment pursuant to section 55.1(3) of the Act.

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: 2014 FORD, FSE (the “vehicle”)

Date of Appeal: April 21, 2016

The Appellant provided the following explanation in support of her motion for the extension of time to file her appeal. She stated that, on March 30, 2016, five days after the impoundment, she completed the necessary forms for her appeal. She took the forms to the local post office to fax them to the Tribunal. Unfortunately, the fax machine was not working. Therefore, the Appellant put the appeal forms in a large envelope and mailed the envelope to the Tribunal. On April 21, 2016, the envelope with the forms was returned to her by Canada Post. A yellow “return to sender” on the envelope indicated it was “unclaimed”. Unable to understand why the envelope was returned, as the Tribunal address was accurate, the Appellant immediately faxed the documents to the Tribunal. The Notice of Appeal received by the Tribunal on April 21, 2016, is dated March 30, 2016.

The Appellant stated that although a period of three weeks elapsed and she had not heard from the Tribunal, she did not think of making a telephone call to confirm receipt of her appeal through the mail. She truly believed the appeal was in process, and as she was not familiar with the appeal process, she assumed everything was under control. She is young and has no previous experience with the law or an appeal.

The Registrar’s Agent stated that although the Appellant may have had the intention to file within the time limits, he maintains that she failed to take steps to ascertain that the appeal documents had been received by the Tribunal. The delay is significant and constitutes considerable prejudice to the Ministry (since the Ministry must pay the ongoing impoundment storage fees if the Appellant’s appeal is granted), and the other factors must be balanced against the intention to file.

In order to succeed in its motion, the Appellant must demonstrate that there are reasonable grounds to grant the extension of time. The Appellant’s vehicle was impounded on March 25, 2016. Her appeal was received by the Tribunal on April 21, 2016, 11 days after the deadline for appealing the impoundment.

In considering an extension of time, there already exists a body of case law setting out a test for considering relief from the late filing of appeals. The Tribunal has been guided by the four-part test for reasonable grounds to grant a motion for the extension of time. These are:

1. That there was a bona fide intention to appeal within the time limit;
2. The length of the delay;
3. That there is not prejudice to the Registrar; and
4. The merits of the appeal

The four part test is simply a guide to assist in determining the justice of the case and it does not have to be followed rigidly. A weaker fact situation under one factor may be balanced by stronger facts under one or more of the remaining factors. The Appellant’s intention to file the appeal on time is a strong factor in this case.

In the facts of this case, the Tribunal accepts the Appellant’s statement that she took the necessary steps to file the appeal within the prescribed time. She was forthright in her testimony and provided a satisfactory explanation with respect to the delay. As the Appellant had no reason to doubt that her appeal was received in the mail by the Tribunal and being processed, it is plausible that she did not believe it was necessary to telephone the Tribunal to verify the status of the matter.

The Tribunal, on the evidence, concludes that there was a bona fide intention to appeal within the prescribed time period. While the delay in this appeal could potentially cost the Ministry some extra days of impoundment storage fees, that is not enough prejudice when weighed against the Appellant’s loss of her right to appeal this impoundment if the time for extending her appeal is not granted. The Tribunal allows the motion for the extension of time.

ISSUE

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?

The Appellant stated that on the evening of the impoundment, she lent the vehicle to her boyfriend whom she has known for three months. He told her he had a valid driver’s licence; however, she acknowledged that she did ask to see the licence. She conceded that she was too trusting and plans to be more careful in the future. Indeed, the evidence presented by the Registrar was that her boyfriend had never been licensed. On this evidence, the Tribunal notes that the Appellant would likely not succeed on the possible ground of having exercised due diligence, which was not pursued in this appeal.

The Appellant stated that she requires the vehicle to get to work. She works from 8 to 4:30, five days a week, and earns an above average hourly wage. Although her workplace is a five-minute drive from her residence, she stated it is a 45-minute walk. Since the impoundment of the vehicle, she has been able to carpool with a co-worker from time to time, and has hitchhiked on other occasions. However, as she has not always had transportation, she has missed approximately 12 days of work. She has been unable to rent a vehicle as she is under the age of 21 years. Although her mother has driven her to buy groceries on a few occasions, she did not ask her mother for a ride to work as their relationship is strained. Despite missing some days of work, her employer is understanding and supportive of her situation. The Appellant has managed through the period and there is no loss of employment. The Appellant conceded that she did not consider other options for transportation, for example, using a bicycle, and she agreed that may have been other alternatives rather than missing these days of work.

The Appellant acknowledged that the impoundment period expires on May 9, 2016, the date of this hearing, and she has received the Release Order. She intends to pay the impoundment fees with her credit card in order to have the vehicle released. Although her boyfriend is not working, he has offered to help pay for the costs.

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 of Fail to Remain at Accident under the Criminal Code of Canada pursuant to which he was then suspended until December 10, 2016. The Registrar’s evidence indicates that the suspended driver has never been licensed.

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 section 50.2(3)(d).

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.

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 summary, the Appellant stated she requires her vehicle to drive to work.

With respect to exceptional hardship, the Registrar’s Agent pointed out that the issue of alternative transportation must be considered. The Appellant has been able to carpool and hitchhike to work most of the time. He added that she failed to look at other available options to avoid missing days of work. The Registrar’s Agent pointed out that the loss related to finances or employment is not significant and lasting, as required by the Regulation. Her employment is secure.

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.

With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle. Section 10(4) states: “In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.” Then, if there is no alternative available, the Tribunal may consider whether the impoundment will result in a threat to health or safety, or in an “immediate, significant and lasting” loss (in the nature of finances, employment or education) to any person ordinarily transported by the motor vehicle.

In this case, the Appellant’s testimony established that she found some other ways to get to work without having her vehicle, even hitchhiking, which the Tribunal believes would be going beyond what is reasonably expected, since there are safety concerns about that mode of transportation. For the 12 days of missed work, she did not satisfy the Tribunal that she had looked into other reasonable options that may have been available to her, rather than simply not going to work for so many days.

While the Tribunal appreciates that the Appellant may have suffered some inconvenience, the legislation does not permit that to be considered as hardship. And even though the Appellant incurred some financial loss as a result of the impoundment, 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 either the ground of having no alternative to the impounded vehicle or a loss that is immediate, significant and lasting. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.

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. The Tribunal notes that the impoundment period expired on the day of this hearing and that the Appellant has received the Release Order.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

RELEASED: May 12, 2016