Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10564/MVIA
CASE NAME: 10564 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: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 28, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on December 28, 2016, 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 “Act”).
Pursuant to section 50.2(5), the Tribunal confirms the impoundment.
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: 2003 Dodge CVR (the “vehicle”)
Date of Appeal: December 6, 2016
ISSUES
The Notice of Appeal does not require the Appellant to specify the grounds for appeal. Based on the Appellant’s testimony, the Tribunal has considered the Appellant’s appeal on the ground 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
The Appellant testified that he is retired and he and his wife are living on pensions. He stated that he loaned the vehicle to his neighbour to travel to a neighbouring town. The Appellant did not know the driver’s licence of the neighbour was suspended and he did not make inquiries about the driver’s licence. He stated that he has loaned his vehicles over the years to many people and never had a problem until now.
The Appellant stated that he has been able to get around since the impoundment of his vehicle by borrowing the vehicle owned by his wife. He testified, by way of example, that he used his wife’s vehicle recently to drive to a neighbouring town to visit his elderly aunt. The Appellant stated that he does not like to ask his wife if he can borrow her vehicle.
The Appellant testified that he has appealed because the impoundment charges are going to create financial difficulties for him because he lives on a pension income. He said that he has asked the driver of the vehicle to contribute to the cost of the impoundment. He believes that the driver will help him out with this cost but that the driver may not be able to pay all of the cost given that he is only employed on and off and is currently unemployed.
Evidence for the Registrar
The Registrar filed written submissions with the Tribunal on December 19, 2016, including documents containing information relating to the impoundment of the vehicle. The following certified copies of documents were tendered by the Registrar and admitted into the record on consent of the Appellant:
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment 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 2 below.
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of an alcohol-related offence under the Criminal Code of Canada pursuant to which the driver’s licence has been suspended until May 2019.
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 of Impoundment addressed to the Appellant dated December 1, 2016.
THE 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.
Ontario Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner of a motor vehicle that is impounded may appeal the impoundment to the Tribunal. However, the owner may only appeal on the 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 Tribunal is considering the Appellant’s appeal on the basis of section 50.2(3)(d), which is 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(8) of the Act, the decision of the Tribunal is final and binding.
ISSUE
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in 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.
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.
Section 10 of Ontario Regulation 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.
The section also provides that the Tribunal may not, except in certain circumstances, 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 impounded 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 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 impounded vehicle.
APPLICATION OF LAW TO FACTS
Section 10 of Ontario Regulation 631/98 is very specific with respect to the issue of exceptional hardship. The Regulation provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Appellant’s hardship in this case is based on financial reasons. To succeed in the appeal, the Appellant must prove that he has no alternative to the impounded motor vehicle and also that his financial loss is “immediate, significant and lasting.”
Section 10(4) of the Regulation provides that an owner of an impounded vehicle must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.
Accordingly, the Tribunal must first consider if no alternative exists for the impounded vehicle.
The Appellant testified that his wife has her own vehicle and that she has allowed him to borrow her car to get around. He stated, by way of example, that he used his wife’s vehicle to drive to a neighbouring town to visit his elderly aunt. Based on the Appellant’s testimony, it is clear that the he does have the use of his wife’s vehicle, and he is able to get by without his impounded vehicle.
The Appellant also stated that he has asked the driver of the impounded vehicle to contribute to the cost of the impoundment. He believes that the driver will help him out with this cost but that the driver may not be able to pay all of the cost given that he is only employed on and off and is currently unemployed.
The Tribunal understands the Appellant’s concern about the costs associated with the impoundment at the end of the 45 day period because he is retired and living on pension income. While the Tribunal appreciates that the cost of the impoundment fees may be difficult for the Appellant to pay, and difficult for the Appellant to recover from the driver, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle, and if that loss is “immediate, significant and lasting”. Given that the Appellant has an alternative to the impounded vehicle, the Tribunal cannot consider the financial impact on the Appellant. In any event, even if the Appellant could have shown no alternative to the impounded vehicle, he has not provided enough evidence to show that his financial loss would be significant and lasting.
Therefore, the Tribunal finds that the Appellant has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act on a balance of probabilities.
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
_______________________ Avril A. Farlam, Vice-Chair
Released: January 6, 2017