10340 v. Registrar of Motor Vehicles, 2016 CanLII 88929

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

DATE: 2016-08-15

FILE: 10340/MVIA

CASE NAME: 10340 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: 10340 -and- Respondent: Registrar of Motor Vehicles

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: August 8, 2016

REASONS FOR DECISION

A hearing was held on August 8, 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 July 7, 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: 2005 Chevrolet Impala

Date of Appeal: July 20, 2016

In his Notice of Appeal, the Appellant indicated that he was appealing on the ground of exceptional hardship. He explained that since his motor vehicle was impounded, he has “been a prisoner” in his own home. Because of his two knee replacement surgeries, he cannot get around without his car, which means he has not been able to do groceries or his banking. The Appellant is also concerned about the financial impact of having his car impounded because he is living on a modest yearly income and he questions how he will be able to pay the cost of the impoundment.

At the beginning of the hearing, there was some initial discussion to clarify the Appellant’s grounds of appeal. The Appellant confirmed that he was not suggesting that the motor vehicle had been stolen nor that he had exercised due diligence. Therefore, the only ground of appeal the Appellant is pursuing is exceptional hardship.

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’s grandson testified that he was driving the Appellant’s car when it was impounded. He admitted that it was irresponsible of him to take the Appellant’s car and drive it while his licence was suspended. He acknowledged that his actions are negatively affecting the Appellant.

He explained that due to health issues, the Appellant needs his car to do groceries, his banking and attend medical appointments.

The Appellant’s grandson testified that he lives with the Appellant and considers himself his care taker. Although the Appellant does not require medical care, the Appellant’s grandson takes care of things around the house and makes some meals. Since the Appellant’s car has been impounded, the Appellant’s grandson has been getting the Appellant’s coffee, groceries and lottery tickets, all of which are within a walking distance of 4 to 5 blocks from the house.

The Appellant’s grandson confirmed that he is currently employed as a general labourer in construction, and has been for the past few years.

In response to questions from the Respondent’s Agent, the Appellant’s grandson explained that it was not the first time he was arrested for impaired driving and driving without a valid driver’s licence. He had no recollection of a three-day suspension in 2009. However, he confirmed that he was stopped in 2010 and 2011 and received a 90-day administrative driver’s licence suspension for driving with over 80 mg of alcohol in his blood. In addition, he noted that he was stopped in July 2015 while driving the Appellant’s car and it was impounded. He does not remember the duration of the impoundment, but he noted that it was not very long.

The Appellant testified that he used his car to go everywhere because he is unable to walk more than short distances and he needs his cane to get around. As confirmed by the Appellant’s family physician in a letter dated August 7, 2016, the Appellant has chronic medical conditions, including severe arthritis in both knees, which prevents him from managing activities of daily living without his vehicle.

The Appellant explained that he now has to rely on his grandson to get groceries. He indicated that most of his family does not live in the area; therefore, he cannot rely on anyone else to drive him to appointments. He is not close to his neighbours and does not want to ask them for any favours. The Appellant confirmed that his brother drove him to his doctor’s office to obtain the doctor’s note for the purpose of this hearing; however, he does not like to ask his brother for assistance.

The Appellant has not missed any medical appointments since his vehicle has been impounded but he indicated that he has an appointment for a cortisone injection on August 11, 2016. He does not know how he will get to and from his appointment. Although he could take a taxi to travel the distance of 10 miles, he is concerned about the cost associated with a taxi. The Appellant explained that although his grandson may try to find him a ride to go to his appointment, he is not comfortable getting in a car with one of his grandson’s friends.

The Appellant explained that taking the bus is not an option for him because he would have to walk approximately five blocks, a distance he cannot manage considering his health condition. The Appellant testified that he called the city to enquire about driving services for persons with disabilities, and he was advised that he would have to put his name on a list and it could take months before he was considered for those services.

The Appellant submitted that the impoundment of his vehicle has resulted in exceptional hardship because he cannot go anywhere without his car because of his health condition. Furthermore, he is concerned about the financial burden of the impoundment because he is living on a modest yearly income.

Evidence for the Registrar

The Registrar filed written submissions with the Tribunal on July 29, 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 July 7, 2016.

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

3. A Plate Search for the impounded vehicle.

4. A copy of the Notice to Registrar stating that the Appellant’s grandson received a 90-day administrative driver’s licence suspension on February 17, 2011 for driving while over 80 mg.

5. A copy of the Notice to Registrar stating that the Appellant’s grandson received a 90-day administrative driver’s licence suspension on July 18, 2010, for driving while over 80 mg.

6. A copy of a Notice of Suspension stating that the Appellant’s grandson’s licence was suspended for 3 days on July 28, 2009 because he was driving while over 50 mgs of alcohol.

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.

Ontario 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 his appeal on a balance of probabilities.

According to section 10 of Ontario Regulation 631/98, when deciding if exceptional hardship will result from an impoundment under section 55.1 of the Act, 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’s health conditions, as summarized in his doctor’s letter of August 7, 2016, create an additional burden for the Appellant.

However, based on the evidence presented at the hearing, the Appellant’s grandson has been taking care of getting groceries, buying coffee and lottery tickets for the Appellant. The Appellant testified that although he does not like to ask others to drive him to appointments, his brother drove him to his doctor’s office to pick up the doctor’s letter for the purpose of this hearing. Regarding the Appellant’s upcoming medical appointment, his grandson offered to find him a ride. Alternatively, the Appellant could take a taxi. Although the Tribunal acknowledges that the Appellant would prefer not to ask his brother for a ride, get a ride from one of his grandson’s friends or pay for a taxi, the fact remains that these options are available, and they are reasonable options in the circumstances. Therefore, the Tribunal finds that the evidence supports that the Appellant has been able to find an alternative to the impounded vehicle.

The Tribunal understands that the Appellant is concerned about the costs associated with the impoundment at the end of the 45-day period because he is living on a limited annual income. 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 and if that loss is “immediate, significant and lasting”. Since the Tribunal found that the Appellant has an alternative to the impounded vehicle, the Tribunal cannot consider the financial impact. And in any event, the Appellant has not provided enough evidence to show that this financial loss would be significant and lasting.

The Tribunal finds that the Appellant did not establish, on a balance of probabilities, exceptional hardship as prescribed under section 50.2(3)(d) of the Act. 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: August 15, 2016