Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2017-02-16
FILE:
10613/MVIA
CASE NAME:
10613 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 (presiding)
Marisa Victor, Member
APPEARANCES:
For the Appellant:
Self-represented, and assisted by his daughter
For the Respondent:
Sonia De Santis
Heard by teleconference:
February 7, 2017
REASONS FOR DECISION AND ORDER
A hearing was held on February 7, 2017 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, on February 10, 2017, ordered the Registrar to release the motor vehicle, with reasons to follow. The following are the reasons for decision.
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: 2015 CHEV SIL (the “vehicle”)
Date of Appeal: January 20, 2017
Date of Impoundment: January 10, 2017
In his Notice of Appeal (Exhibit #2), the owner appealed on the basis that the impoundment of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
ISSUES
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 and his wife (“LB”) are both members of a First Nations reserve located a few hours’ drive north of Thunder Bay. They are both 67 years old, live on limited income (Old Age Security and CPP), and both suffer from diabetes. Their eldest daughter (“MT”) acted as agent for the Appellant and LB at the hearing.
The Tribunal notes that the Appellant provided documentary evidence to support his case including:
weather reports showing the amount of snow that fell on January 10, 2017 and the extremely cold temperatures,
monthly financial records for both the Appellant and LB, and
doctors’ notes and records supporting missed appointments and medication requirements.
The Appellant and his wife had travelled from their home to the home of one of their daughters. She lives in a different First Nations community which is about an 18 hour drive from their home. During the winter months, some northern communities that are accessed by plane only, become accessible by winter roads. These roads are essentially made of ice and run over frozen lakes. This daughter lives in one of these communities.
On January 10, 2017, the Appellant and his wife left their daughter’s reserve to drive home. The Appellant and LB also had their daughter and seven-year old grandson in the vehicle. They were stopping in Thunder Bay on their way home as their grandson had an appointment with an asthma specialist. The trip from the reserve to Thunder Bay is approximately 15 hours. They had decided to sleep the night in Pickle Lake.
LB was driving the vehicle. Unfortunately, a winter storm hit and the roadway was obscured by blowing snow. LB grew anxious. At one point, a transport truck nearly drove them into a ditch. LB stopped the vehicle and begged the Appellant to drive instead of her. She had become extremely nervous, the road was unfamiliar and she was too anxious to continue. It was not safe to stop for too long on the road in stormy weather. The Appellant knew he was not supposed to drive, but because of the bad weather, his wife’s growing anxiety and the fact that he was more familiar with the road, he took over the driving.
About a half an hour from Pickle Lake, an O.P.P. officer pulled the vehicle over. The reason given for the traffic stop was that the Appellant’s licence plate was covered by snow. The Officer also requested a breathalyser sample. The Appellant provided a clean sample. There were no Highway Traffic Act tickets given to the Appellant related to any driving infraction. The only, and significant issue, was that he was driving while his licence is under suspension.
The Appellant was arrested and taken into custody. The vehicle was impounded for 45 days until February 24, 2017.
LB explained to the police officer that she was unfamiliar with the area and did not know the location of any hotels. He did not offer any assistance. She also explained why her husband had been driving in the first place. The Appellant’s daughter explained that her son had a specialist appointment in Thunder Bay scheduled for January 12th, and that he had asthma. The Appellant’s wife felt traumatized by her treatment by the arresting officer.
Luckily, another officer arrived on the scene and provided assistance to the family. He drove the Appellant’s wife, daughter and grandson to a hotel in Pickle Lake.
The Appellant was released that same night with a promise to appear in Pickle Lake on February 17, 2017.
Unfortunately, the family now found themselves stranded. The Appellant’s daughter and grandson were eight8 hours from home and eight hours from Thunder Bay where they were supposed to be on January 12th for the specialist appointment. The Appellants were approximately 10.5 hours from their home. To add to this, both the Appellant and LB’s supply of medication for their diabetes was depleted.
The Appellant and LB had no ability to get home, to get their daughter and grandson to Thunder Bay or financial resources to continue to stay in Pickle Lake. The Appellants called their daughter’s father-in-law. He came and drove them all back to their daughter’s home. The Appellant and LB had to stay there until someone else could come to pick them up. Their grandson missed his specialist appointment, which could not be rescheduled any earlier than March 8, 2017.
While staying with their daughter, the Appellant and LB were able to obtain a few days’ supply of their prescribed daily medication. However, they were unsure as to how much longer they could rely on the limited resources available at the clinic in that community.
On January 20th, their daughter, MT, who resides in Thunder Bay, received a government assistance cheque and was only then able to afford to go pick up her parents and finally drive them back home.
MT stated that both the Appellant and his wife had various medical appointments in Thunder Bay in regard to their treatment for diabetes and related appointments with a foot doctor. She has driven them to Thunder Bay for appointments, (several hours each way), but other appointments have been rescheduled. With regard to health care, there is occasional access to a nurse in her parents’ home community. However, in non-emergency cases of illness, the Appellant and LB would normally drive to Thunder Bay to see a doctor. There is no 911 service. In cases of emergency, the only option is transport by air ambulance to a hospital. It takes the air ambulance two hours to reach their community.
The Appellant and LB do not own another vehicle. They have another daughter who lives 45 minutes north of their community who has only occasionally been able to help out.
MT stated that a vehicle is the only way to survive on the reserve. The Appellant’s community is under a Health Canada boil-water advisory and that all water has to be purchased and transported back home by vehicle. The primary source for heating of their home is wood, which is retrieved from the bush, loaded into a truck and transported back home. They will run through a truck load of wood per week. All groceries are purchased in Thunder Bay, a several hours’ drive away.
The Appellant and his wife have had to use their limited resources to pay people in their community to go buy them groceries from Thunder Bay, to provide them with water and wood delivery. MT stated that these are significant expenses.
The Appellant is a residential school survivor. He was able to purchase his vehicle with money he obtained through the residential school settlement. The Appellant’s driving record shows significant drinking and driving infractions from 1972 until 1991. He then had a clean driving record from 1991 until 2016. MT explained that her father has struggled recently as a result of trauma arising from his attendance at the Truth and Reconciliation Commission hearings.
Following the Appellant’s charges in November 2016, he did enrol in a men’s group for alcohol counselling, but was discharged from that program because he could not make it to two of the sessions during the impoundment. The next session is offered in March 2017. He has been able to complete the Ministry of Transportation’s two- day “Back on Track” program, in the hope of getting his licence suspension period shortened.
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;
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended to May 15, 2018.
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 appeals on the ground that the impoundment will result in exceptional hardship, as set out in paragraph 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.
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.
Generally, the Tribunal may not consider, except in certain circumstances:
- 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 Appellant has the onus to prove his appeal on a balance of probabilities.
APPLICATION OF LAW TO FACTS
The Tribunal found the Appellant’s evidence to be highly credible regarding the family’s experiences, including the initial traffic stop, the anxiety they experienced in the immediate aftermath of the impoundment and the continuing challenges they are experiencing. Although the circumstances of the impoundment are not relevant to the Tribunal’s assessment of exceptional hardship as set out in the legislation, the Tribunal notes the Appellant’s statement that he was sorry for having driven while under suspension and that at the time it was “life and death” as there was no place to stop on the winter road.
The Appellant and LB live in a remote northern community in which access to a vehicle is extremely critical. They do not own another vehicle. Public transportation is non- existent. Their daughter, MT, who herself has limited financial resources, and who lives 45 minutes away has been able to assist with taking them to medical appointments, though they have had to reschedule some appointments.
The Appellant and LB are entirely dependent upon others to secure their basic necessities. Their community is under a Health Canada boil water advisory. Large jugs of water need to be purchased and transported home by truck. Similarly for their home heating needs, wood must be picked up and taken home by truck. A truckload of wood lasts about a week. To date they have paid neighbours gas money to pick up water and wood. This is expensive given their limited income and is not sustainable.
In the community in which LB and the Appellant live, a vehicle is a lifeline. The evidence clearly establishes that they have no reasonable alternative to the impounded vehicle. Their level of dependency on others for basic necessities is not reasonable. In these circumstances, the Tribunal finds that there is a threat to LB’s health and safety. Further, as noted in the evidence, this is not a community with 911 service. In an emergency, air ambulance service is available but the helicopter takes two hours to reach their community. While there is no specific evidence that LB’s health has suffered by being unable to make some of her medical appointments, there is a threat to her health caused by the continuation of this difficult living situation given the family’s reliance on having a vehicle in a remote northern community
Finally, even though the financial loss to the Appellant cannot be considered under the Regulation, the impoundment costs will also cause financial loss for LB, since she is in one family unit with her spouse, the Appellant. The Tribunal heard evidence that the cost of the impoundment is approximately $75 per day. The cost for 45 days will be roughly equal to two months’ of the Appellant and LB’s combined income from CPP and Old Age Security. If the fee is paid, LB will suffer tremendously and disproportionately. They may be unable to afford water, food and essential needs, such as heating for their home.
The Tribunal finds that the Appellant has established, on a balance of probabilities, exceptional hardship under section 50.2(3)(d) of the Act. Therefore, the appeal succeeds on this ground.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle to the Appellant.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Marisa Victor, Member
RELEASED: February 16, 2017