Licence Tribunal

Tribunal d'appel en matière de permis

DATE: 2016-01-21

FILE: 9974/MVIA

CASE NAME: 9974 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: Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Stephen Grootenboer, Agent

Heard by teleconference: January 19, 2016

REASONS FOR DECISION AND ORDER

A teleconference hearing was held on January 19, 2016, 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 subsection 50.2(5) of the Act, 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: 2012 Toyota TAC (the “vehicle”)

Date of Appeal: December 30, 2015

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 section 50.2(3)(d) of the Act.

Should the Tribunal order the Registrar of Motor Vehicles (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 lives with his spouse and family in a suburban area. The Appellant is currently unemployed, having lost his job as a pharmacy technician in November 2015. His spouse had just started a four month contract with the federal government and was, on the day of the impoundment, December 18, 2015, training for the new job. On that day, his sons had scheduled dentist appointments. It had taken a while to get the appointments so he did not want to reschedule them. His sons had been in discomfort with cavities that needed to be looked after. He decided to drive his sons to the appointment; his intention was simply to drive them to the dentist and back. He was aware of his licence suspension, but viewed the circumstances as an “emergency”, so while he knew he should not drive, he did anyway. He stated that his first instinct was to drive. He was stopped by an OPP officer soon after leaving the house.

The Appellant explained that the family does have a second vehicle, a 2011 Dodge van. This vehicle is registered in his spouse’s name. She had driven the van to work on December 18^th and has continued to drive it though it has had some problems, including issues with the brakes. Most days, she drives about 15 minutes to the closest “park and ride” and then takes a bus to work from there. She has not missed any work because of the impoundment of the Appellant’s vehicle. She is sometimes out of town for work; for example, on the day of the hearing, she was working in Halifax and would then be in Montreal before returning home at the end of the week.

The Appellant’s sons take a bus to school and have not missed any school or appointments as a result of the impoundment of the vehicle. The Appellant stated that it was his intention to transfer his vehicle to his spouse since he will not be able to drive for some months yet and it is the more reliable vehicle; it is almost “brand new”.

The Appellant stated that the cost of a 45-day impoundment is significant, approximately $2,700. His spouse is on a four month contract that finishes at the end of March. They are currently a single income family with mortgage payments and other bills to pay. The impoundment costs will cause significant hardship for them.

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:

1. 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;

2. Copy of the Ministry of transportation records indicating that a second vehicle is registered in the name of the Appellant’s spouse;

3. 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;

4. Copy of the Notice forwarded to the Registrar regarding the impoundment; and

5. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of failing to provide a breath or blood sample, pursuant to which the driver’s licence of the driver was then suspended until July 23, 2016.

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:

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.

O. Reg. 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 subsection 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, 3^rd 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.

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 Appellant was very honest and candid as he presented his case. He was aware even as he drove the children to their appointment on December 18^th that it was wrong for him to do so. His licence has been suspended since May 2015. It was not long after he left his driveway that he saw the OPP cruiser. The Appellant also acknowledged that the vehicle, even if it is released, will be of no use to him. It will be at least July before his licence is reinstated. However, it would be available for his spouse’s use. Furthermore the cost of the impoundment itself is a hardship for his family, compounding as it does the financial stresses that came with his loss of employment in November.

However, with respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria that the Appellant must meet to determine if exceptional hardship will result from the impoundment. On these facts, where an appellant is the suspended driver, the Tribunal must first consider whether those persons ordinarily transported by the vehicle, have an alternative to the motor vehicle.

The Appellant’s spouse does have a vehicle. While it may not be the most reliable, especially in colder temperatures, it has worked sufficiently well so that she gets to work. She has not missed any work because of an inability to get there, as a result of the impoundment. The fact that she drove her own vehicle on the day of the impoundment, at a time when her husband’s vehicle would have been otherwise available to her, suggests that she was not “ordinarily transported” by the Appellant’s vehicle. She has also used her van for the family’s purposes as needed. Issues with her van might be best characterized as “normal” maintenance issues. The children get to school by bus and there is local public transit available to the family. The evidence is clear that the Appellant’s family has alternatives to the impounded vehicle.

Further, even if the Appellant could show that there was no alternative to the impounded vehicle, it cannot be said that the impoundment will result in a threat to anyone’s health and safety. Nor does the cost of the impoundment on the facts of this case meet the test in the Regulation as a financial loss that would qualify as “exceptional hardship.” While the Tribunal is sympathetic to the situation faced by the Appellant and his family, he has not established exceptional hardship as set out in section 50.2(3)(d) of the Act.

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

Patricia McQuaid, Vice-Chair

Released: January 21, 2016