Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-08-23
FILE:
10364/MVIA
CASE NAME:
10364 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:
Bryant Greenbaum, Member
APPEARANCES:
For the Appellant:
Joseph Murray, Counsel
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
August 18, 2016
REASONS FOR DECISION AND ORDER
INTRODUCTION
The Appellant appealed the impoundment of her vehicle which occurred when her boyfriend drove her vehicle while his driver’s licence was under suspension. The Appellant stated that she felt ill while driving to a social outing two blocks from her home, and she asked her boyfriend to drive in her place. The possible grounds of appeal put forth by the Appellant are that she had exercised “due diligence” and that the impoundment has caused “exceptional hardship” as defined in the legislation.
The Tribunal found the Appellant to be a credible witness but unfortunately she does not meet the test set out in the legislation, in relation to due diligence or exceptional hardship, and therefore the vehicle will remain impounded for the required 45 days.
Preliminary matters
The Appellant filed a supplementary submission with the Tribunal, but did not serve the Respondent with the submission. The Tribunal did not review the contents of the submission except for the cover letter which indicated that the submission contained documentary evidence to substantiate her applications to college and her internet employment search. The Tribunal noted that evidence could be tendered orally to show that the Appellant had applied to various colleges and that she was actively seeking employment, should the documentary submissions not be admitted into evidence. This course of action would therefore not delay this time-sensitive impoundment proceeding. Furthermore, it was confirmed by the Tribunal that the Appellant’s college applications and employment search could be fully explored in testimony as opposed to limiting the evidence to the documents tendered. The Appellant agreed to this course of action and the submissions of the Appellant, which were not served on the Respondent prior to the hearing, were not entered into evidence.
ISSUES
ISSUE 1
Did the Appellant prove that she had “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”, as set out in section 50.2(3)(c) of the Highway Traffic Act?
The Appellant confirmed in her testimony that she was aware her boyfriend had a suspended licence and that she was aware that her boyfriend was not permitted to drive a car. But, because she felt ill on the way to their social function, she disregarded this prohibition and allowed her boyfriend to drive her car. This evidence clearly does not support the ground of “due diligence”.
ISSUE 2
Did the impoundment cause “exceptional hardship” within the meaning of s. 50.2(3)(d) of the Highway Traffic Act?
The legislative test for this ground of appeal is very explicit. In closing submissions, the Appellant’s representative acknowledged this fact, confirming that the legislation makes it “more difficult” to find exceptional hardship.
Section 10 of the Regulation first requires that there is no alternative to the impounded vehicle. Section 10(4) states: “…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”. Even if the Appellant passes this first hurdle of showing no available alternative to the impounded vehicle, the next step for the Appellant is to show that the impoundment will result in a threat to health or safety, or that it will cause a financial, employment or education loss that will be “immediate, significant and lasting”. The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
Facts and Analysis
The evidence in this case confirms that the Appellant has been affected by the impoundment as she is not able to visit three colleges, to inspect residences, and meet with college officials, in order to make an informed decision about prospective enrollment in a program for the September 2016 term. The three colleges are varying distances from her home, namely 2.5 hours away, 1.5 hours away, and 1 hour away from her home. Also, the loss of her vehicle is affecting her employment search as she is presently employed at a Foodland store but is looking for a higher paying job, although she has not been called for an interview to date despite applying for seven positions via the Internet and in person. Finally, the Appellant had concerns about the costs relating to the impoundment and how these costs may deter her opportunities to attend college on account of scarcity of funds to pay for tuition.
Regarding alternatives to the impounded vehicle, the Appellant confirmed the following:
The Appellant had asked her father, and friends, for assistance, including borrowing their cars or getting driven to appointments by them; however they did not agree to these requests for assistance due to employment or school related commitments;
The Appellant had asked her mother for assistance as well; however, her mother is also looking for employment and is waiting for a job “call-back or interview” and therefore booking a date with her mother could be problematic;
The Appellant felt that renting a car for the limited, isolated, days she wished to visit college campuses was too expensive. She indicated the cost to rent a car would have been $30 a day but this was prohibitive as she was paid $11.25 an hour at Foodland and worked 20 hours per week. She also noted that the cost of taxis was also prohibitive.
Despite the foregoing, the Tribunal finds that there were reasonable alternatives to the Appellant’s impounded vehicle, even if they may be inconvenient or expensive, such as occasionally renting a car or asking for her mother’s assistance with her car, to visit colleges or to attend a job interview should one arise. Although appointments may need to be rescheduled if the Appellant relies on her mother’s car, should her mother be called to a sudden and unexpected job interview, this alternative remains available and reasonable. It is important to note at this time neither the Appellant nor her mother have received notice of a follow up job interview so this possible intervening event is speculative at the present time.
Furthermore, for the few, selected, days a car is needed, to visit college campuses, or to attend a job interview, should one arise, a rental car is once again an available and reasonable alternative. The Appellant confirmed she has some savings in the bank and these savings could be relied upon to pay for a car rental when and if necessary. In addition, the Appellant noted she has not missed work during the impoundment so she would have money from employment earnings to also assist in this regard.
Also, even if the Appellant could pass the first hurdle of showing that she has no reasonable alternative to her impounded vehicle, which she has not done, the evidence does not support a finding that the loss caused to the Appellant is a threat to health or safety. Although the Appellant mentioned that she has postponed a dentist appointment, this is not a threatening health concern, and no other urgent health issues were mentioned. There has been no loss of employment. As noted above, she has not missed a single day of work. Regarding the need for a vehicle to seek other employment or to visit colleges, both are speculative at this point, and further cannot be considered as being affected in any significant and lasting way.
The Tribunal finds that the evidence does not meet the requirements in the legislation to provide exceptional hardship as defined in section 10 of the Regulation. Though the Tribunal acknowledges the Appellant’s commitment to higher education, and her goals of securing better employment, the Tribunal must still assess the evidence and then apply the law as it is written in the Act and Regulation.
The Tribunal finds that the Appellant has not proven her appeal on the ground of “due diligence” or “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 confirms the impoundment of the Appellant’s motor vehicle, to remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Bryant Greenbaum, Member
Released: August 23, 2016