Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-10-11
FILE:
10469/MVIA
CASE NAME:
10469 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:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
October 6, 2016
REASONS FOR DECISION
A hearing was held on October 6, 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”).
Pursuant to section 50.2 (5) 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: Acura, TSX (the “vehicle”)
Date of Appeal: September 13, 2016
The Appellant’s vehicle was impounded on August 24, 2016. The time for filing an appeal to this Tribunal expired 15 days later, on September 8, 2016. The Appellant filed her appeal five days after the deadline for appealing the impoundment. However, the Tribunal did not receive the Appellant’s Notice of Appeal until September 13, 2016. The Appellant contacted the Tribunal on September 27, 2016 and re-filed her Notice of Appeal at that time. She brings a motion to extend the time for filing her appeal.
The Tribunal first heard the motion for the extension of time, which it granted. It then heard the Appellant’s evidence with respect to the appeal.
MOTION
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, states:
Despite any limitation of time fixed by or under any Act for giving any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal sunder section 11 of any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) Extend the time for giving the notice either before or after the expiration of the limitation of time so limited, and
(b) Give the directions that it considers proper as a result of extending the time.
In making its decision, the Tribunal has been guided by the four part test for reasonable grounds to grant a motion for the extension of time, as set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. These are:
- That there was a bona fide intention to appeal within the time limit;
- The length of the delay;
- That there is not prejudice to the Registrar; and
- The merits of the appeal.
The four part test is simply a guide to assist in determining the justice of the case and it does not need to be followed rigidly. A weaker fact situation under one factor may be balanced by stronger facts under one or more of the remaining factors.
The Appellant emphasized that her life is extremely stressful and that she is very busy with her full time job and her three children, ages two, four and seven, as well as her elderly parents. She indicated that her daughter has severe food allergies as well as asthma. The Appellant testified that she does not have time to check her mail box every day and did not see the Notice of Impoundment until September 5, 2016. On September 6, 2016, her daughter had a severe allergic reaction at school and needed to be taken to the hospital. The Appellant subsequently did some research on Google on whether it would be worthwhile to appeal the impoundment, and she filed the Notice of Appeal by facsimile on September 13, 2016. She received a facsimile confirmation. She contacted the Tribunal on September 27, 2016 to inquire about the appeal. At this time, she learned that the Tribunal had not received her Notice of Appeal. She refilled her Notice of Appeal at this time.
Mr. Kapur argued that the Appellant’s busy lifestyle and family commitments are no excuse and that the delay constitutes a considerable prejudice to the Ministry (since the Ministry must pay the ongoing impoundment storage fees if the Appellant’s appeal is granted).
The Tribunal concludes, on the evidence, that there was a bona fide intention to appeal within the prescribed time period. In reaching this conclusion, the Tribunal weighed the Appellant’s daughter’s health issues two days before the expiry of the time limitation for filing the Notice of Appeal. The Tribunal also accepted the Appellant’s testimony that she received a facsimile confirmation after sending the Notice of Appeal on September 13, 2016, which would have been only five days late. When the delay in this appeal could potentially cost the Ministry some extra days of impoundment storage fees, this is not enough prejudice when weighed against the Appellant’s loss of her right to appeal this impoundment if the time for extending her appeal is not granted. As such, the Tribunal allows the motion for the extension of time.
ISSUE
The Appellant 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
The Appellant testified that she is married and that she and her husband both have full time employment. Her husband drove their vehicle, while his licence was suspended, during a family vacation because the Appellant was over-tired. They realize that this was a terrible mistake and are very sorry for their error in judgment.
The Appellant testified that her family only has one car and that she is responsible for driving her three children to school and day care. She also looks after her elderly parents, who reside with her, and needs a vehicle to drive them to medical appointments. Her mother has osteoporosis.
After her vehicle was impounded, she tried to rely on public transportation to accompany her children to and from school and day care, and to get to and from work. It is a roughly 40 minute drive to her place of employment and a three hour bus ride. She found it was too difficult and time consuming to rely on public transportation; her children were suffering as they had to wake up extra early. Her daughter also suffers from severe allergies and she needs to be able to get to her quickly in the event of an allergic reaction, like the one which occurred on September 6, 2016.
As a result, she rented a vehicle. However, she cannot afford the rental car and is incurring additional debt on their credit cards. She stated that she is already at her maximum credit limit on all of her credit cards. She also noted that she had an accident while driving the rental car and did not have the proper insurance and could be required to pay $6,000 in repairs, another factor which is aggravating her family’s precarious financial situation. The Appellant stated that she has no savings. In order to afford the cost of getting her vehicle out of impoundment she will be forced to miss a mortgage payment.
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 driving while impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 19, 2017.
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 ground that the impoundment will result in exceptional hardship as set out in s. 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(3) of the Act, the decision of the Tribunal is final and binding.
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.
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.
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 whether no alternative exists for the impounded vehicle. If there is no alternative, then whether the impoundment will result in a threat to the 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.
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 provisions in section 10 of Ontario Regulation 631/98 are very strict and require that the owner demonstrate that every reasonable alternative to the impounded vehicle has been considered.
The Appellant, in this case, gave evidence that she and her husband have full time jobs and that when her vehicle was first impounded, she used public transportation, which she found to be very inconvenient as it took too long and necessitated waking her children up very early in order for her to get to work on time. The Appellant also gave evidence that after trying public transportation for a few days she rented a vehicle.
The Tribunal can understand the difficulties that the Appellant is having with using public transportation to get her children to school and day care, and to get herself to work. It may well be that renting a car is a more reasonable alternative, but the Appellant indicated that she cannot afford to rent a car so many times. However, the Tribunal finds that the Appellant has not provided enough evidence that the costs of renting a car are so unaffordable that it would be unreasonable that she use car rental as an alternative to her impounded vehicle, and as a way to continue working in her full-time job. In any event, even if the Appellant could pass this first hurdle of showing that she has no alternative, she would not be able to satisfy the next step in this legislated test of exceptional hardship, which is to show that the financial loss caused by the impoundment is immediate, significant and lasting. The Appellant and her spouse both have full-time jobs, and having her credit card reach its limit and perhaps missing a mortgage payment will not be enough to prove that her loss is lasting in nature.
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
_______________________
Jacqueline Castel,
Presiding Member
RELEASED: October 11, 2016