Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 10345/MVIA
CASE NAME: 10345 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
10345 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATORS: Mary Ann Spencer, Presiding Member Raymond Ramdayal, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: August 8, 2016
REASONS FOR DECISION
A hearing was held on August 8, 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 “Act”).
Pursuant to section 50.2(5), the Tribunal confirms the impoundment.
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 Ford ZX4 (the “vehicle”)
Date of Appeal: July 21, 2016
ISSUES
The Notice of Appeal (Exhibit #2) does not require the Appellant to specify the grounds for appeal. Based on the Appellant’s testimony, the Tribunal has considered the Appellant’s appeal on the ground 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
The Appellant testified that after twisting her ankle, she was unable to drive her vehicle which has a manual transmission. A trusted friend offered to drive to pick up her children who were in another municipality. She was unaware that he did not have a valid driver’s licence and testified that she made a mistake allowing him to use the vehicle.
The Appellant provided evidence about why she had no reasonable alternatives to her impounded vehicle, and the financial and other hardship she was experiencing. The Appellant is a single mother with three children under the age of twelve. She receives no child support from the children’s father. Until January 2016, she worked two jobs. However, in January 2016, she was hired by a major crown corporation as a casual employee. She explained that she works on call and is assigned to fill in for vacancies. The assignments can vary significantly: she may be called to fill in for three weeks or she may only be asked to work a day in one location.
A staffing agent may call her early in the morning to ask her to report to work that day. Notwithstanding the variable nature of her employment, she testified that she is essentially working full time, earning anywhere from $200 to $250 a day, depending how many hours she works.
The location of the Appellant’s work assignments can vary significantly. She lives in a midsized city. The assignments may be in that city or they may be in any of the smaller municipalities in the area. She testified that having the use of a vehicle is critical to enable her to continue to work. The city in which she lives does have a public transportation system; however, it could take her as long as two hours to reach some of the assignment locations within the city. Some of the other locations might be served by commuter train service; however, she testified that she requires a vehicle to reach others.
The Appellant lives with her mother in a two-apartment complex. Her share of the monthly rent is $800. Her normal routine is to drive her children to day care/camp which opens at 7:30 in the morning and then continue to her assignment. She indicated that her work day starts at 8 a.m. and can last up to ten hours. Her mother, who works as a personal care assistant, will pick the children up and either takes them to her workplace or to the Appellant’s brother’s home until the Appellant is able to pick them up at the end of work day. Taking a taxi to the day care/camp would cost $20. There is a bus route from her home to the facility. She indicated that she could use this to take the children in the mornings; however, using public transportation, she would not be able to reach her work in time. And, public transportation would only be an option if the assignment was within the city.
Since her vehicle was impounded, the Appellant has been able to use her step-father’s vehicle while he has been away. However, when he returns at the end of this week, she will lose the use of the vehicle. She expressed considerable concern that without the use of a vehicle, she would lose her new job which enables her to be independent and support her children. She explained that the terms of her employment allow her to turn down only two of every six assignments she is offered. And, while she could theoretically ask for leave, she is concerned that doing so would diminish her chances of being hired as a permanent employee. The staffing agent at the crown corporation is aware of her situation but the Appellant noted that the agent can only offer her work where the vacancies occur.
The Appellant believes that her only option is to try to purchase a new vehicle. She noted that she does not have a good credit rating and that financing would be difficult to arrange. She also testified that she has made enquiries with two companies about renting vehicles but stated she could not afford the rental fees which were quoted to her as approximately $500 per week. She testified that taking a taxi to some of the assignment locations would cost as much as $60. She stated both vehicle rental and taxi options were unaffordable; she worked 70 hours over the last two weeks and netted approximately $1,200. Her share of the monthly rent is $800.
However, the children’s day care/camp is totally subsidized because the fees have been based on her previous years’ income.
Asked if she could perhaps borrow her mother’s vehicle, she stated she could not. Her mother also works outside the city and needs the vehicle to transport the person she cares for. When she picks up the children, she brings that individual with her in the car and then returns to the individual’s home.
The Appellant has had no contact with the suspended driver since the impoundment. She believes he is working but has not approached him for financial assistance. She also indicated she would be very reluctant to ask her family for financial assistance.
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 the driver at the time of impoundment had been convicted of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver has been 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.
Ontario 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 Tribunal is considering the Appellant’s appeal on the basis of section 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
With respect to the issue of exceptional hardship, section 10 of Ontario Regulation 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 cannot consider the Appellant’s financial loss unless the Appellant has proven that she has no alternative to the impounded motor vehicle, and also that her loss is “immediate, significant and lasting”.
Section 10(4) of Ontario Regulation 631/98 requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.
The Appellant testified that she has a new job which has variable work locations. Assignments can also vary both in duration. She noted that she can be called early in the morning and asked to accept an assignment for the same day. Therefore, she testified that she needs the flexibility that a vehicle provides. Until she is called by the staffing agent, she does not know where she might be asked to work or what the duration of an assignment might be. She is very concerned that she could lose her job without the use of a vehicle or jeopardize her prospects of being hired as a permanent employee if she turns down assignments or requests leave.
The Appellant has had and will continue to have the use of a family vehicle until August 12, 2016. The impoundment of her vehicle ends on August 31, 2016. Her situation is unusual in that she does not know whether there will actually be a transportation problem after she returns the family vehicle. For example, if she were to be offered an assignment at a location close to her home, the public transportation system in the municipality in which she lives might be a viable alternative. However, the Tribunal acknowledges that the Appellant requires the flexibility to accept assignments outside of the municipality.
The Appellant testified that she believes purchasing a vehicle is her only alternative. She investigated the cost of renting a vehicle, stating she called two agencies, but could not afford the $500 per week fees quoted. Mr. Kapur questioned these fees, noting that they seemed “exorbitant” and suggested that the range of $50 per day would be more probable.
The Appellant testified that she felt “overwhelmed” and had not fully considered her options, wanting to have her appeal heard first. By her own admission, the Appellant has not thoroughly investigated all of the options available to her, including the availability of a more reasonably priced vehicle rental. She also has not asked the suspended driver for assistance.
The Appellant indicated that she earns approximately $200 to $250 a day. Her monthly rent is $800 plus utilities. She pays no child care costs. She gave no testimony with respect to any other financial obligations she might have. There are alternatives to purchasing a new vehicle available to the Appellant, which include the rental of a vehicle or the use of taxis. The financial information she provided does not indicate these are unaffordable.
The Tribunal finds that the Appellant has not demonstrated that she has investigated every reasonable option that could mitigate her loss. The evidence indicates that the Appellant does have alternatives available to the use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
The Appellant was not able to prove she had no alternative to the impounded vehicle. This alone would mean that the Tribunal is prohibited from considering any financial loss that the Appellant may incur, such as the impoundment fees. But in addition, the Tribunal cannot consider any financial loss unless it is “immediate, significant and lasting”. While this impoundment may cause some short-term financial stress, the Appellant’s financial situation indicates that this would not be significant or lasting.
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
Mary Ann Spencer, Presiding Member
Raymond Ramdayal, Member
Released: August 15, 2016