Licence Appeal Tribunal
FILE: 10592/MVIA
CASE NAME: 10592 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: 10592
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: January 23, 2017
REASONS FOR DECISION
A hearing was held on January 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”).
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, HYUN, ALS (the “vehicle”)
Date of Appeal: January 3, 2017
ISSUE
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.
FACTS
Evidence for the Appellant
The Appellant testified that her 50 year old son, who resides with her, was driving her vehicle while his driver’s licence was under suspension, when the vehicle was impounded. She acknowledged that she did not keep the keys to the vehicle in a secure location where he could not access them. She stated that her son has a drug addiction and cannot be trusted to make responsible decisions. She is not taking the position that her son stole her vehicle.
She stated that she lives in a rural community where there is no public transportation. She works cleaning residential homes in a city about 10 to 15 minutes from her home. There is public transportation in this city. She stated that she requires the vehicle to get to her cleaning jobs, and her family relies on the income from these jobs to pay their bills. They do not have any savings.
She stated that her husband is retired and does not work. Since the car was impounded, her sister has driven her to some of her cleaning jobs, but she has missed other cleaning appointments. Her sister has also driven her to get groceries and do other errands. The Appellant testified that her customers are very loyal and that they want her to continue to clean their homes even though she has had to miss some scheduled appointments because of the impoundment of the vehicle. Her son, who was driving the vehicle when it was impounded, gets injections every couple of months in Toronto for a muscle condition in his neck. He has an appointment on Wednesday, January 25, and she would normally be the one to drive him to the appointment. She does not know how he is going to get to this appointment, but indicated she would be forced to figure something out.
On cross-examination, the Appellant acknowledged that her husband has two other vehicles with valid vehicle registrations registered in his name, a 2003 GMC truck, and a 1972 OLDS/CUT. She stated that they never drive the 1972 Oldsmobile as it is very old, and the truck is a gas guzzler so they do not like to drive it.
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;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of dangerous driving and driving while his licence was suspended, under the Criminal Code of Canada, pursuant to which the driver’s licence of the driver was then under suspension until June 22, 2018.
Copy of the Vehicle Records in the name of the Appellant’s spouse.
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(8) of the Act, the decision of the Tribunal is final and binding.
The Appellant here appeals on the basis of section 50.2(3)(d).
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.
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, and if there is no alternative, then the Tribunal may consider whether the impoundment will result in a threat to the 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
In this case, the Appellant has not satisfied the Tribunal that there is no alternative to the impounded motor vehicle, and that every reasonable option has been considered.
The Appellant’s husband has two vehicles registered in his name which have not been impounded. He is retired and does not work; as such, he does not need the vehicles for employment purposes. Although one of the vehicles is very old, the pick-up truck could be used for the Appellant to drive to her cleaning jobs, to do shopping and other errands, and to take her son to his medical appointment on January 25, 2017 in Toronto. The Appellant testified that the pickup truck is a gas guzzler and that they do not like to use it for this reason. The Tribunal recognizes that the pickup truck is not an ideal option; however, it is still a reasonable alternative until her vehicle is released from impoundment. The Appellant also stated that her sister has driven her to some of her cleaning jobs and to do errands, which is another alternative, from time to time, to limit the use of the pick-up truck.
Further, the Appellant made a point of emphasizing in her testimony and Notice of Appeal that her clients are very loyal and would like her to continue to clean their homes; as such, although she has had to miss some cleaning appointments, none of her clients have terminated her employment with them. Therefore, even if the Tribunal was satisfied that there was no alternative to the vehicle, the Appellant did not substantiate that any financial or economic loss, from not being able to use the vehicle, will be immediate, significant and lasting.
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, Member
RELEASED: January 25, 2017