Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10630/MVIA
CASE NAME: 10630 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.
10630 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member Theodore Crjlenica, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: February 23, 2017
REASONS FOR DECISION AND ORDER
A hearing was held on February 23, 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”).
The Tribunal rules 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 the full 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: 2009, NISSAN, ALTIMA (the “vehicle”)
Date of Impoundment: January 27, 2017
Date of Appeal: February 1, 2017
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.
He is a full-time university student and is able to walk or take a bus to attend classes. To pay for his education and support himself, the Appellant is employed four to five days a week. He works outside of the city, approximately one hour away from his residence at university and he needs the vehicle to get to his employment location. His schedule of classes allows him to work Friday to Monday and on Wednesdays.
Since the impoundment, the Appellant stated that he has relied on rides from friends and an uncle who lives close to his employment. However, such rides have been unreliable and he has missed approximately nine shifts of work. From time to time, he has stayed overnight with his uncle but finds it difficult to do school work. He does not want to impose on his uncle more than necessary. The Appellant stated that his employer is aware of his circumstances and although concerned that he has missed some work, his employment is secure and he may be able to pick up extra hours in the future.
The Appellant indicated that his principal residence is in the United States. His financial situation is strained as he has bills and loans to pay. He relies greatly on the income he earns through his employment to sustain his costs as a student.
The Appellant described the circumstances surrounding the impoundment of the vehicle. The suspended driver is his cousin. The Appellant and the suspended driver had gone out the night before and the Appellant had left the keys for the vehicle in the hotel room where they were staying. The Appellant used other means to return to his residence. The following morning, the suspended driver returned the vehicle to the Appellant’s residence and was stopped by the police for speeding.
In cross-examination, the Appellant acknowledged that it was the second time in the past five months that the suspended driver had been stopped while driving his vehicle without a valid licence. The previous incident occurred in August 2016, and the Appellant stated that the suspended driver had led him to believe that his licence had been reinstated. The Appellant stated that he was not familiar with the driving regulations in Ontario and did not think of asking the suspended driver for proof of a valid licence.
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; and
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on December 1, 2016 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 December 1, 2019.
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 section 50.2(3)(d).
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.
The above 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 he requires his vehicle to drive to work. As he lives one hour from his employment location, alternate means of transportation are inconvenient and difficult. He relies on his job to pay for his university education and living expenses.
The Agent for the Registrar indicated that the Appellant has found alternatives to the impounded vehicle and that exceptional hardship, as defined by the Regulation, has not been met. Although the loss of the vehicle for the Appellant is inconvenient, his ability to get to his university classes has not been affected and there is no threat to his employment.
The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner of the impounded vehicle 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, other than a loss to the suspended driver.
In this case, the Appellant’s testimony established that reasonable alternatives to the impounded vehicle do exist. During the 30 days of impoundment before the hearing, the Appellant has been able to attend his university classes by walking or taking the bus. Through friends and a relative he has been able to get to work. Although he has missed some work, there is no indication that there is a threat to the security of his employment. Although the Appellant is undoubtedly inconvenienced by having to make these alternative arrangements to get to work, the law does not permit inconvenience to be considered as exceptional hardship. The Appellant was unable to prove he has no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship under the Regulation.
Furthermore, even if the Appellant could meet the test of having no reasonable alternative to the impounded vehicle, he cannot meet the other parts of the legislated criteria. For example, 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 requirement of being a financial loss that is, “immediate, significant and lasting.” The Tribunal appreciates that the Appellant may be experiencing financial difficulties and that the cost of the impound fees may create an additional burden. However, the evidence shows that the Appellant has maintained his employment while attending university and the financial loss is not significant and lasting nor is the security of his employment or education at risk.
Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
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 the full 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Theodore Crljenica, Vice-Chair
Released: February 28, 2017