Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-05-03
FILE:
10142/MVIA
CASE NAME:
10142 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:
Nives Montano, Member
APPEARANCES:
For the Appellant:
MM, Agent
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
April 20, 2016
REASONS FOR DECISION
A hearing was held on April 20, 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: 2011 BMW – 28X (the “vehicle”)
Date of Appeal: March 31, 2016
In addition to the Appellant and a family friend, MM, who acted as the Appellant’s Agent, also present on the teleconference were the Appellant’s spouse (who did not testify) and the Appellant’s son, TS, who was the suspended driver at the time the vehicle was impounded.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 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
A summary of the Appellant’s evidence follows.
The Appellant is 88 years old and speaks very little English. The Tribunal received evidence from the Appellant by way of MM through informal interpretation. The Appellant lives with his spouse and their youngest child, TS, who is 48 years old and the suspended driver. Both the Appellant and his spouse have numerous health issues which require a number of doctors’ visits and physiotherapy sessions per week.
The Appellant wakes between 9:30 a.m. and 10:00 a.m. each day and takes naps throughout the day due to his medications.
On the morning the vehicle was impounded, TS removed the car keys, which were in their “usual place” – the Appellant’s pant pocket; the pants were hanging in the Appellant’s bedroom where he and his spouse were asleep. TS was allegedly driving to his pharmacy to pick up his own prescriptions as well as cigarettes.
MM indicated that the Appellant is the only one who drives the impounded vehicle. He stated that TS is a passenger in the Appellant’s vehicle and attends the doctors’ appointments with his parents as a translator.
The Agent for the Registrar asked how the Appellant has managed with the day-to-day activities since the vehicle was impounded. MM indicated that TS looks after his parents’ well-being; cooks for them; takes them to doctors’ appointments; administers their medication throughout the day, as well as purchases groceries. TS also works approximately 30 hours per week in sales for a contracting company. TS testified that he is picked up and driven to work by his colleagues.
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 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 TS was the driver at the time of impoundment and had been convicted of ability impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life on July 12, 2006.
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
The ground of “stolen” did not appear to be a viable argument in this case. The Tribunal notes that the Appellant was aware that his son became a disqualified driver in 2006, but the Appellant did not appear to have done much to ensure that the car keys were not easily available to his son. There was nothing in the evidence to suggest that the Appellant had prohibited his son from driving the vehicle. The Registrar’s Agent even suggested that TS may have routinely driven the vehicle or had casual use of it, but the Tribunal does not need to make a finding on this issue.
For this appeal to be successful on the exceptional hardship ground, the Appellant must first demonstrate that there is no alternative to the impounded vehicle. Section 10(4) of the Regulation 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.”
Since the vehicle’s impoundment, the Appellant has rented a vehicle for two days; has taken taxis; and has relied on the kindness of neighbours, friends and the suspended driver’s ex-spouse to get to their medical appointments. The Appellant cannot rely on his two other adult children since one is quite ill and the other lives 2 ½ hours away.
There have only been 3-4 doctors’ appointments missed for the Appellant and his spouse, and these will be rescheduled.
They reside in a community that is accessible by 911, and their doctors and hospital are close to their residence.
These facts show that the Appellant has reasonable alternatives to the impounded vehicle. But even if the Appellant could prove that he had no reasonable alternative, it would be very difficult to meet one of the other requirements in the legislated definition of exceptional hardship – that there is a threat to the health or safety of the Appellant or his spouse, or that the impoundment is causing financial or other loss to the Appellant or spouse that is “immediate, significant and lasting.” The evidence provided in this appeal does not support that kind of threat or loss. While the Tribunal is very sympathetic and understands that the Appellant is inconvenienced and does not want to further impose on others to be transported to medical appointments or other locations, the Regulation is very clear in saying that the Tribunal cannot consider inconvenience when deciding if there is exceptional hardship,
TS testified that he made a “foolish” mistake and will pay for the consequences, including paying for the impoundment fees. The Appellant has the right to seek compensation from the suspended driver, as stated in subsection 55.1(27) of the Act.
In closing, the Appellant stated “give me the car badly”, “need to go to the doctor”, “son is sorry”. However, as set out above, on the evidence and facts of this case, the Tribunal finds that the Appellant has not met the definition of exceptional hardship, and he cannot succeed in this appeal.
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
Nives Montano, Member
Released: May 03, 2016