Licence Appeal Tribunal
FILE: 10012/MVIA
CASE NAME: 10012 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.
10012 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: February 17, 2016
REASONS FOR DECISION
A hearing was held on February 17, 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”).
The Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the Act. 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: 2006, HONDA, UEX (the “vehicle”)
Date of Appeal: January 27, 2016
ISSUES
As set out in the Appellant’s request for hearing (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 to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Appellant
During the hearing, the Appellant reiterated the comments on the Notice of Appeal. Although she is presently out of the country and returns one day prior to the expiry of the impoundment period, she stated she needs the vehicle to get around as she has recently undergone knee surgery and cannot use public transportation. The Appellant indicated on the Notice of Appeal that she is on a permanent disability; however, she testified that she requires the vehicle to return to work in the near future as she finds herself in serious financial difficulties. She stated that her son (RG), the suspended driver, drove the vehicle because he panicked when he believed his five month old daughter was experiencing a medical emergency.
RG provided evidence during the hearing. He accepts he made a mistake in driving the vehicle while his licence was suspended and accepts full responsibility for his actions. He explained that at the time he felt it was urgent to take his daughter to a hospital emergency. Although calling an ambulance or taking a taxi were viable options for him, he found it easier to drive the car as the vehicle was parked at his house. He accepts that his actions have caused financial strain for his mother.
During cross-examination, the Appellant acknowledged that she was out of the country at the time of the impoundment. RG stated that the vehicle was parked at his house as it was safer in his garage than in an open driveway at his mother’s house. He acknowledged he had a key for the vehicle, but only to start it once in a while. The Appellant further acknowledged that she has made two trips to India in the past five weeks, one for personal reasons and the other for knee surgery. She has been away from her residence most of the time since the impoundment of the vehicle. When she returned for a 12 day period between trips, her daughter was able to drive her to do shopping and attend to her daily needs. Although she stated she needs the vehicle to return to work, RG stated that his mother requires two weeks of rehabilitation before she attempts to drive or seek work.
The Appellant indicated that her daughter has assisted her financially for her trips; however, she is not able to help pay the impound fees. RG indicated that although he would like to help his mother financially he is unable to do so as he has just started a new business and his finances are very strained.
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 and the driver at the time of the impoundment, as owners;
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 Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended until October 29, 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:
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.
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 Appellant here appeals on the basis of sections 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.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- 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 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.
The Regulation also 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
In closing, the Appellant stated she cannot afford to pay the cost of impoundment and she requires her vehicle.
The Agent for the Registrar indicated that the Appellant has been out of the country for most of the period of the vehicle impoundment. For the brief period where she was at her home, the Appellant had an alternative to the impounded vehicle. In addition, even if the Appellant had no alternative to the vehicle, any loss related to finances, employment or education is not significant and lasting, as required by the Regulation.
The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.
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 the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor 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.” Then, if there is no alternative available, the Tribunal may consider whether the impoundment will result in a threat to health or safety, or in an “immediate, significant and lasting” loss (in the nature of finances, employment or education) to any person ordinarily transported by the motor vehicle.
In this case, the Appellant’s testimony established that an alternative to the impounded vehicle did exist for the brief period of time when she was in the country. Although inconvenient, her daughter was able to assist her during this period. On the other days, when the Appellant has not been in the country to drive, she cannot show that she has no alternative to this vehicle. She is scheduled to return home one day prior to the expiry of the impoundment period. There is conflicting evidence as to whether or not she will be able to drive the vehicle or seek employment. While the Tribunal appreciates that the cost of the impoundment fees may be difficult, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. And furthermore, the financial loss would have to be immediate, significant and lasting.
The Tribunal finds that the evidence does not support the Appellant’s case on either the ground of having no alternative to the impounded vehicle. Even if that were proven by the Appellant, the evidence does not show that the other requirement has been met – that her loss is immediate, significant and lasting. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
Therefore, the appeal has failed.
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
Geneviève Blais, Member
Released: February 25, 2016