Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 10449/MVIA
CASE NAME: 10449 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.
10449 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: September 29, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on September 29, 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) 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: BMW, X15 (the “vehicle”)
Date of Impoundment: September 2, 2016
Date of Appeal: September 13, 2016
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, as set out in section 50.2(3)(d) of the Act.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant testified that he loaned his vehicle to his son’s girlfriend and did not authorize his son to drive the vehicle, since his licence was under suspension. He admitted that he did not specifically tell his son’s girlfriend not to let his son drive the vehicle; however, he stated that she knew his son’s driver’s licence was under suspension.
The Appellant stated that he does not know how his son came to drive the vehicle. He stated that he has not spoken to his son’s girlfriend since he loaned her the car. He also did not ask his son why he was driving the vehicle and how he obtained the keys. He indicated that his son was recently diagnosed with diabetes and also suffers from depression and suggested that these medical conditions, in particular the depression, could have been a factor in his son driving the vehicle. The Appellant stated that he is not alleging that his son stole the vehicle.
The Appellant stated that he has a second vehicle, which he now uses to get to and from work and to take his elderly parents, who are living with him, to medical appointments. He confirmed that he has a full time job. He also acknowledged that he has access to public transportation, if necessary.
The Appellant testified that he has no savings and lives from pay cheque to pay cheque. Therefore, he cannot afford to get his vehicle out of impoundment. He does not believe he would qualify for a bank loan and his only option would be to put the impoundment fee on his credit card and incur more debt. He stated this would be a financial hardship.
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 (September 2, 2016) 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 failing to provide a breath or blood sample under the Criminal Code of Canada, pursuant to which the driver’s licence of the driver was then under suspension until February 24, 2017.
Mr. Kapur reviewed the above documents and requested that the Tribunal confirm the impoundment order, since this does not qualify as a case of exceptional hardship, as defined under the legislation.
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 section 50.2(3)(d).
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.
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 above factors 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 O. Reg. 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 he has a full time job and a second vehicle, which he uses to get back and forth from work and to take his elderly parents to medical appointments. As such, his testimony established that he has an alternative to the impounded vehicle. The Appellant also testified that he has no savings and his only option, to secure the funds to get his car released from impoundment, would be to incur additional debt on his credit card.
In the circumstances of this case, since the Appellant has an alternative to the impounded vehicle, he does not qualify to have financial or economic loss to himself considered, when determining whether the Tribunal should order the Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship.
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, Member
Released: October 5, 2016