9990 v. Registrar of Motor Vehicles, 2016 CanLII 9433

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

DATE: 2016-02-25

FILE: 9990/MVIA

CASE NAME: 9990 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.

9990 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATORS: D. Gregory Flude, Vice-Chair Raymond Ramdayal, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: February 3, 2016

REASONS FOR DECISION

1A hearing was held on February 3, 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”).

2Pursuant to section 50.2 (5), the Tribunal, by oral order at the end of the hearing, SET ASIDE THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle was to be released from the impoundment facility. These are the reasons for the decision.

BACKGROUND

3A 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: 2009 GMC Sie (the “vehicle”) Date of Appeal: January 15, 2016

ISSUES

4As set out in the Appellant’s request for hearing (Exhibit #1), the Appellant 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.

5The issue for the Tribunal is whether the Tribunal should order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship.

FACTS

Evidence for the Registrar

6The documents tendered by the Registrar and admitted into the record on consent of the Appellant were as follows:

1. Notice to Registrar regarding an impoundment on December 31, 2015;
2. Driving Record of the suspended driver indicating that the driver is subject to a licence suspension for life pursuant to the Criminal Code for blood /alcohol content in excess of .08.
3. Vehicle Record of the vehicle;
4. Notice of Impoundment dated December 31, 2015;
5. RIN Summary of showing all past and present vehicles owned by the Appellant;
6. Driver record of the Appellant;
7. Conviction Record of the Suspended Driver for offences in 1997;
8. Plate search of vehicle involved in 1997 conviction;
9. RIN abstract showing all of the past and present vehicles registered in the suspended driver’s name.

Evidence for the Appellant

7The Appellant is married and lives with her spouse and three of her children in a rural area in southern Ontario. She has five children in total, but two are currently attending college approximately two hours’ drive away from home. She does not work outside the home because she suffered a serious back injury several years ago. The suspended driver is her husband. He had recently been laid off from work. A job opportunity had arisen for which he needed to acquire supplies. Despite knowing of his licence suspension, the Appellant let him take the vehicle to pick up a co-worker and go for the supplies.

8Unbeknownst to the Appellant, her own licence was then under suspension for outstanding fines for a speeding conviction. Her evidence was that she had sent a letter requesting a trial but had heard nothing more. She was unaware that she had been convicted in absentia, fined, and had had her licence suspended for failure to pay the fine.

9An OPP officer saw the vehicle on the highway and ran the licence plate number. He discovered that the vehicle was registered to a person whose licence was then under suspension and decided to pull it over. He found the suspended driver at the wheel, and, as a result, impounded the vehicle. The officer questioned the passenger who told him that the suspended driver had picked him up and driven him to work often in the past. The Appellant testified that she used to drive her husband to work and they would pick up the passenger on the way.

10The Appellant described her current circumstances. She lives approximately 20 minutes by car from the nearest town. She needs to get to town to purchase groceries and is currently relying on the goodwill of a friend to pick up essentials for her from time to time. The supply is intermittent and the Appellant advised the Tribunal that her children have had to go without milk and bread on occasion since the impoundment because her friend has had no reason to go to town.

11There is school bus service available to take the Appellant’s children to school, but the Appellant is concerned that she is unable to respond to any emergencies that may arise during the school day requiring her to pick up one or more of her children immediately. This concern is more than mere speculation. The oldest child of the three residing at home suffers from extreme anxiety and self-mutilates. The Appellant has had emergency calls in the past from the school to pick her up and calls during the impoundment period are not out of the question. Without the vehicle, the Appellant stated, she has no way of going to pick her daughter up.

12There has been at least one missed medical appointment for the Appellant’s daughter. She developed tooth pain shortly after the impoundment and requires dental treatment. The Appellant must accompany her to the dentist because of her daughter’s extreme anxiety. Without the vehicle, the Appellant has been unable to get to the local town. She has cancelled one appointment and may have to cancel a second if the vehicle is not returned shortly. Her daughter’s pain is managed by the use of Tylenol.

13The Appellant herself has serious medical issues. Several years ago she fell and cracked two vertebrae. She has undergone operations to fuse vertebrae, but recently she has had an increase in pain and numbness in one leg which now appears to be spreading to the second leg. She will, in all likelihood, require further medical procedures, including the possibility of more surgery. To properly determine the best course of action, the Appellant’s doctors require her to have an MRI. The nearest MRI machine is approximately an hour and a half away by car. She has an appointment during the impoundment period that was booked several months ago. If she misses it and needs to re-book, there will be a further delay of several months in her treatment. Faced with increasing numbness and pain, the Appellant is concerned that she may become paralyzed before anything can be done to remedy her condition.

14The Appellant has another car registered in her name that has a valid sticker and is shown on the Ministry’s records as fit to drive. The police officer called as a witness by the Respondent, testified that he had driven past the Appellant’s home on a number of occasions following the impoundment of the vehicle, twice during the day and three times late in the evening. When he was there during the day, the second vehicle was not visible in the driveway. On the three evening visits, the second vehicle was in the driveway, but on one occasion it was parked in a different position. In the officer’s view, the second vehicle was being used to transport the Appellant and her family.

15In questioning the officer, the Appellant asked him if he had noticed the garage on her property. He had not. She told the Tribunal that the second car is in need of repairs and body work. Since her spouse has been laid off, he works on an assortment of vehicles that they have, including snow blowers and the second car. He pulls the vehicle he is working on into the garage and works on it during the day. He pulls it out at night when he is finished. Sometimes it is put back in the same place, other times it is not.

LAW

16Section 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.

17Subsection 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.

Regulation 631/98 provides that the prescribed period, referred to above, is two years.

18The 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).

Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

19The Act does not define “exceptional hardship.” The Shorter Oxford English Dictionary, 3rd ed. defines “exceptional” and “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.

20The statutory scheme contemplates that the loss of a vehicle for 45 days will create some measure of hardship to the owner. Hardship arising out of the ordinary course of the impoundment is generally insufficient to trigger the remedial provisions of the statute. The Act requires that the hardship be “exceptional.”

21Section 10 of O. Reg. 631/98 provides detailed criteria to specify which factors the Tribunal may consider or is prohibited from considering when it is deciding whether the hardship reaches the threshold of being exceptional. First, the Tribunal must consider whether no alternative exists to 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.

[22] Second, the section provides that the Tribunal may not, except in certain circumstances, consider the following factors:

• financial or economic loss to any person,
• loss of employment or employment opportunity to any person, or
• loss of education or training.

[23] 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.

24The 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

25Under the Regulation, the first requirement to show exceptional hardship is that there is no alternative to the impounded 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.”

26The Registrar argues that the Appellant has made no efforts to ascertain if there are alternative means of transportation available. He cites the fact that the Appellant owns another car and has not made any efforts to repair it and get it on the road. In the alternative, the Registrar cites the evidence of the police officer that the car has been absent from the driveway during certain days. He urges the Tribunal to find that the second car is actually serviceable and being used. The evidence of the police officer is, of course, simply a snapshot of the driveway as he drove by. He drew conclusions but made no efforts to confirm his conclusions. He did not notice that the Appellant had a garage. The Tribunal accepts the Appellant’s evidence that the second car is not currently roadworthy and that it was moved inside the garage to be worked on.

27The Registrar also asserts that the Appellant failed to consider other options. He argued that the Appellant’s daughter could have come home from college, two and a half hours away, to drive the Appellant the one and a half hours to her MRI appointment and then return to school. The Tribunal notes that the test is “reasonable alternative” not all possible alternatives. The Tribunal finds this solution is not reasonable in the circumstances. The Tribunal also finds that the distances are such that the use of a taxi service would be prohibitively expensive. It must be borne in mind that both parents in the house are out of work at present, with no steady income. The Appellant testified that a taxi to the school her youngest attends is unaffordable at $30.00 each way and that is only 10 minutes away. The cost of a taxi for an hour and a half may be scaled up proportionately. The Tribunal finds there is no reasonable alternative transportation available to the Appellant.

28The evidence discloses that the vehicle was being operated by the suspended driver at the time it was detained. Thus, it was properly impounded. The evidence also discloses that the Appellant’s particular circumstances create conditions which meet the detailed requirements of section 10 of the Regulation. The Tribunal finds that the loss of the vehicle will result in exceptional hardship on the Appellant and her family, excluding the suspended driver.

29If there is no alternative to the impounded vehicle, then the Tribunal may consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle. The Appellant is in danger of suffering further pain and loss of sensation in her legs if she does not receive the treatment needed to resolve it. She stated that both the pain and the loss of sensation are worsening. She is actively seeking treatment, the next step of which is to attend for an MRI a significant distance from her home and then meet with her healthcare provider to plot out a future course of treatment. Further, while the evidence discloses that the Appellant’s daughter is currently in counseling for her issues that seems to be having some effect, the lack of the ability to respond if an emergency presents itself is a threat to the health and safety of a person normally transported in the vehicle.

30Therefore, the Tribunal finds that the Appellant’s situation meets the definition of exceptional hardship.

DECISION

31After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the Appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair

Raymond Ramdayal, Member