10626 v. Registrar of Motor Vehicles, 2017 CanLII 17558

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2017-02-27

FILE:

10626/MVIA

CASE NAME:

10626 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:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Robert Brunet, Counsel

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

February 16, 2017

REASONS FOR DECISION AND ORDER

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”).

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, date of impoundment, and date of appeal in this matter are as follows:

Owner: The Appellant

Motor Vehicle: 2015, GMC, SIE (the “vehicle”)

Date of Impoundment: January 29, 2017

Date of Appeal: January 30, 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.

The Appellant described the circumstances surrounding the impoundment of the vehicle. She stated that the suspended driver is her husband. On the day of the impoundment, he used the vehicle to attend a weekly medical clinic as the Appellant was sick and unable to drive him. Although she was aware that he was prohibited from driving for life, she and her husband had assumed his licence had been reinstated in January 2016.

The Appellant resides with the suspended driver and their two children, ages 8 and 13 years old. Their residence is located on the outskirts of a midsized city, where public transportation is limited. The family owns one vehicle and the Appellant’s employment is approximately 21 kms from her home. Her work hours are 8:45 a.m.to 5:00 p.m. Her children are picked up by two separate school buses as they attend different schools, with the youngest child picked up at 8:15 a.m. The earliest she can take the local bus is at 8:45 a.m. once her daughter gets on the school bus. The hour long bus ride makes her late for work. The suspended driver works shifts and carpools to work located one hour away from the home.

Since the impoundment, the Appellant has relied on family, friends and a co-worker to get to work and attend to daily needs. In addition to full time hours of work, she makes herself available for overtime hours two evenings a week. The availability of a taxi is unreliable and the daily cost is prohibitive. The Appellant indicated that her children are involved in a number of extra curricular sport activities. Since the impoundment, she has found it very stressful and inconvenient to rely on friends and other parents to get her children to their activities. She has forfeited working overtime hours as she has no reliable means of transportation in the evening. Although she investigated renting a vehicle, the most economical car was $28.00 a day and it was too small to accommodate her son’s sports equipment. She stated that she did not investigate the cost of a longer car rental and maintained that she cannot afford the expense of a larger vehicle.

In cross-examination, the Appellant stated that she earns $21.00 an hour and her husband earns approximately $100,000 a year. She conceded that she is paying a co-worker $20.00 a day when she gets a ride. Nevertheless, she maintained that renting a vehicle is not financially feasible for her. The loss of the vehicle has created additional financial and emotional stress for her family. She is worried about the additional financial obligations from the impoundment fees should she not be successful in the appeal and she may have to get a loan to pay for the costs.

Counsel for the Appellant confirmed that the Appellant was aware that the suspended driver‘s licence had been suspended for life. The Appellant reported to him that, when her husband appeared in court several years ago, he was told that he could apply for a reinstatement of the licence in 2016, but he never did so.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment; and

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on February 24, 1999 of Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended for life.

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:

1. 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.

2. 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.

3. 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 sections 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, Counsel for the Appellant stated that the impoundment has created an additional burden to a strained financial situation and the loss of the vehicle has been very difficult for the Appellant to get to work and maintain her children in their extracurricular activities. He stated that the family’s disposable income is limited as there are other issues impacting the family; however, he did not elaborate with any detail as to what the issues impacting the family are.

The Agent for the Registrar indicated that that the Appellant has alternatives to the impounded vehicle and there has been no loss of employment. Family, friends and co-workers have provided rides to the Appellant. It was incumbent upon the Appellant to confirm the status of the licence suspension and not assume it had been reinstated. After all, her husband had not possessed a valid licence for 17 years and no actual proof of licence had ever been received. The Agent for the Registrar stated that exceptional hardship, as defined by the Regulation, has not been met.

The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3)(d) of the Act, namely, that the owner has suffered exceptional hardship.

For this appeal to be successful on the grounds of exceptional hardship, the Appellant must first demonstrate that there is no alternative to the impounded vehicle. Section 10(4) of the Regulation 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.”

In this case, the Appellant’s testimony established that reasonable alternatives to the impounded vehicle do exist. The Appellant has obtained rides, which has allowed her to continue her employment, attend to her daily activities and maintain the children’s activities. While there may be some inconvenience or additional costs to these alternatives, they are reasonable options in the circumstances. The Appellant was not able to prove she has no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship.

Furthermore, even if the Appellant could meet the test of having no reasonable alternative to the impounded vehicle, she cannot meet the other parts of the legislated definition. 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.” While it was suggested that there are other issues impacting on the family’s financial situation, the Tribunal heard no evidence to support this claim. 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 her employment and there has not been a significant loss of income or a threat to the security of her employment as a result of the impoundment.

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

Released: February 27, 2017