10614 v. Registrar of Motor Vehicles, 2017 CanLII 17562

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

DATE: 2017-02-21

FILE: 10614/MVIA

CASE NAME: 10614 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 10614

-and-

Respondent Registrar of Motor Vehicles

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Geneviève Blais, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

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”).

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: 2013, DODG, DAX (the “vehicle”)

Date of Impoundment: January 9, 2017

Date of Appeal: January 18, 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 was an acquaintance and she was friends with his sister. On the night of the impoundment, the Appellant was not feeling well and while they were out together, he offered to drive the vehicle. She assumed he had a valid licence as she had seen him drive in the past. She acknowledged that she did not ask to see his licence.

The Appellant stated that her financial situation is very strained. The Appellant works full time and earns $17.00 an hour. She resides at home with her parents and does not pay rent. Nevertheless, in May 2016 she signed a “Consumer Proposal Agreement” to avoid declaring personal bankruptcy. She conceded that she does not manage her money very well. The loss of the vehicle is causing her hardship as she requires the vehicle to get to work, which is approximately a 10 to15 minute drive. She also requires the vehicle to drive her father to attend specialized medical appointments out of the city. Her financial situation has been stressful and she has limited money for any extras.

In cross-examination, the Appellant indicated that since the impoundment, she has relied on rides from her mother and a neighbour. She has walked to work when the weather permitted and used of a taxi from time to time. She has not explored the use of public transit although it is readily available. She has missed four days of work. She conceded that her father has not missed any medical appointments since the vehicle was impounded. She is worried about the additional financial obligations she may have as a result of the impoundment fees, should she not be successful in the appeal. However, since the impoundment, she has had contact with the suspended driver who has offered to help pay for some of the costs.

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 October 20, 2016 of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then suspended until April 20, 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:

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).

Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

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 that the impoundment has created an additional burden to an already strained financial situation and the loss of the vehicle has been very difficult for her.

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 and friends have provided rides to the Appellant who has also used a taxi or walked to work. 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 exceptional hardship ground, 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, used a taxi on occasion which has allowed her to continue her employment and attend to her personal daily needs. Alternatively, the Appellant has walked to work. Although the Tribunal acknowledges that this alternative may not be a preferred option, the fact remains that other options including the use of public transportation are available, and they are reasonable options in the circumstances. While there may be some inconvenience or additional costs, 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 the Tribunal appreciates that the Appellant is experiencing personal financial difficulties, and the cost of the impound fees may create an additional burden, the evidence shows that the Appellant has maintained her employment and there has not been any significant loss of income or a threat to the security of her employment.

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 45 days.

LICENCE APPEAL TRIBUNAL

_________________________

Geneviève Blais, Member

Released: February 21, 2017