Licence Appeal Tribunal
File: 10637/MVIA
Case Name: 10637 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: 10637
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
Adjudicator: Jacqueline Castel, Member
Appearances:
For the Appellants: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: February 16, 2017
REASONS FOR DECISION
A hearing was held on February 16, 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 CONFIRMS THE IMPOUNDMENT. 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: 2010 Dodge, CAR (the “vehicle”)
Date of Appeal: February 3, 2017
The Appellant’s vehicle was impounded on January 14, 2017. The time for filing an appeal to this Tribunal expired 15 days later, on January 29, 2017. The Appellant filed her appeal 5 days after the deadline. The Notice of Appeal (“NOA”) is incorrectly dated January 25, 2016. The NOA was received by the Tribunal on February 3, 2017 by Express Post.
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. For the reasons below, the Tribunal allows the motion for extension of time and confirms the impoundment
MOTION
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to extend the time to file an appeal:
…if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, …
In exercising that power, the Tribunal is guided by the principles for consideration on motions for the extension of time set out in the decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, on appeal from this Tribunal. The decision sets out the four factors to be considered in assessing a request for an extension of time, as follows:
- The existence of a bona fide intention to appeal;
- The length of the delay;
- Prejudice to the other party; and
- The merits of the appeal.
Citing Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), the Court stated that the general rule is that time for an appeal is not extended unless the appellant has shown that these factors support an extension. However, the Tribunal notes that the courts have also determined that these factors are simply a guide to assist in determining the justice of the case. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.
The Appellant stated that she did not understand the appeal process until the 15 day deadline for appealing had elapsed. She stated that she was in the vehicle at the time that it was impounded and the police officer told her she could appeal, but he did not tell her where to file the appeal. She stated that she thought the police officer told her to contact the “traffic court” or the “traffic police” about the appeal. She testified that she spent quite a bit of time making phone calls to various departments before she discovered the correct information about the appeal process. She indicated that she left a number of messages and had to wait for return phone calls. The Appellant also testified that she did not initially have the money to pay for postage. She mailed the NOA to the Tribunal by Express Post on February 1, 2017 and it was received two days later. She emphasized that she has a seven children and she receives a monthly Ontario Works cheque. As such, her income is very low and she is very busy.
Mr. Kapur submitted that it was the Appellant’s responsibility to find out the appeal process within the 15 day time period 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 that the Appellant made efforts to educate herself about the appeal process during the prescribed time period and that she did not initially have enough money to pay for postage. In addition, the length of the delay (5 days) is relatively short. While the 5 day delay 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. 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. As such, the issue is whether the Tribunal should order the Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship.
FACTS
Evidence for the Appellant
The Appellant stated that her common law spouse was driving the vehicle when it was impounded and acknowledged that she was in the vehicle as a passenger at the time. She indicated that she is a victim of domestic abuse and that her spouse is very controlling. She was aware that his driver’s licence was under suspension but she is afraid to stand up to him. The Appellant stated that her spouse was imprisoned in May 2016 for domestic assault but that he currently resides with her.
The Appellant submitted that the impoundment will result in exceptional hardship. She reiterated that she has a very small monthly income and receives a monthly Ontario Works cheque. She also has seven children. Six of her children are under 18 and reside with her. Her spouse is not currently working and does not have the money to pay the impoundment fees.
The Appellant stated that she received the vehicle from her grandmother approximately 2 years ago. She indicated that she is currently learning to drive and does not yet have her G2 driver’s licence. She has a G1 permit which allows her to practice driving with a fully licensed driver in the passenger seat of the vehicle. She believes she obtained her G1 permit about one year ago.
She indicated that she uses public transportation to do her errands and that sometimes friends or neighbours help her out. She also stated that she will be going to university in the fall and will need the vehicle to drive to and from university. She plans to have her G2 licence by this time. She admitted on cross-examination that she has managed without a vehicle for most of her life.
Evidence for the Registrar
Mr. Kapur called one witness, Police Constable (“P.C.”) Vusumuzi Nyathi. P.C. Nyathi corroborated that he did not explain the appeal process to the Appellant when the vehicle was impounded and believes he told her to call the Traffic Branch to find out about the process. He also corroborated that the Appellant was in the vehicle when it was impounded.
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 failing to remain at the scene of an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 3, 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 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.
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 Appellant here appeals on the ground that the impoundment will result in exceptional hardship as set out in s. 50.2(3)(d).
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 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 does not have a G2 licence and that her G1 permit only allows her to practice driving with a fully licenced driver in the passenger seat. She also gave evidence that she has managed without a vehicle for most of her life by using public transportation. In addition, she testified that from time to time friends and neighbours help her out. The licence of the Appellant’s common law spouse, who resides with her and who was driving the vehicle when it was impounded, is suspended until October 3, 2017.
In these circumstances, the Tribunal finds that the Appellant has not proven, on a balance of probabilities, that she has no alternative to the impounded vehicle. The Appellant has limited use of the impounded vehicle given that she does not have her G2 licence and her spouse’s licence is under suspension. The Appellant currently relies on public transportation and has done so most of her life.
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
Jacqueline Castel, presiding Member
RELEASED: February 21, 2017