Licence Appeal Tribunal
FILE: 10573/MVIA
CASE NAME: 10573 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: 10573 -and- Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES: For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 29, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on December 29, 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 “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: 2007 FORD COF (the “vehicle”) Date of Impoundment: December 3, 2016 Date of Appeal: December 13, 2016
A few minutes before the hearing was scheduled to commence, Licence Appeal Tribunal (the “Tribunal”) staff received an e-mail from the Appellant asking that the hearing be delayed as the Appellant had a family emergency. Staff then spoke to the Appellant who advised that one of her children was ill. After consulting with the Tribunal member, staff advised the Appellant that the Tribunal would recess the hearing as required to allow the Appellant to check on her child. The Appellant then sent a second e-mail to staff authorizing her friend C.E. to speak on her behalf. After a further phone call, the hearing commenced with both the Appellant and C.E. participating in the hearing teleconference.
On the Appellant’s behalf, C.E. noted that the Appellant had received the disclosure documents from the Registrar only two days before the hearing. He requested an adjournment indicating that the Appellant needed time to consider whether she wished to retain counsel to represent her and whether she needed to subpoena the police officer who impounded the vehicle. The representative of the Registrar of Motor Vehicles (the “Registrar”) objected to any adjournment.
The Tribunal denied the adjournment request. The Tribunal noted that the documents disclosed by the Registrar comprise copies of Ministry of Transportation vehicle registration records as well as the suspended driver’s driving record. The Appellant is aware of the vehicle registrations and is not disputing the status of the suspended driver’s licence. Further, the Appellant filed her appeal on December 13, 2016 and participated in a case conference on December 23, 2016 without raising the issue of representation. The Tribunal also noted that the police officer whom the Appellant wished to subpoena was one of two police witnesses of the Registrar and the Appellant would have the opportunity to cross-examine him.
In her Notice of Appeal (Exhibit #2), the Appellant appealed 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. The Tribunal noted that the Appellant did write in her reasons for appeal that the suspended driver was not operating the vehicle at the time it was impounded. The Tribunal therefore asked the Appellant whether she was appealing on the basis of section 50.2(3)(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. The Appellant confirmed that she was only appealing on the ground of exceptional hardship, stating she was “not appealing anything to do with J.H.”, the suspended driver in this case. Further, she indicated that she was not prepared to answer any questions about the suspended driver during the hearing. The Tribunal again confirmed with the Appellant that the only ground for her appeal was exceptional hardship.
The Tribunal then asked the Registrar if the evidence of the two police officers was still required. The Registrar’s representative indicated that he would only call one of the officers whose testimony might be relevant to the intended use of the impounded vehicle.
Finally, the Tribunal asked the Appellant to clarify if she wished C.E. to act as her agent during the hearing. The Appellant indicated that she would represent herself but that C.E. would act for her should she be required to step away from the proceedings to attend to her sick child. The Tribunal noted that it would be prepared to recess the proceedings to enable her to do so. The hearing then proceeded.
ISSUE
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 in 2012 she suffered a stroke. She and four of her five children subsequently moved in with her parents who provide the Appellant with assistance with her children during her rehabilitation. The Appellant does not work and receives social benefits of $1,161 monthly from which she pays $850 to her parents as monthly rent.
The Appellant’s father operates his own business which requires him to travel extensively. The Appellant’s mother also works in the business but has relocated her office to the family home in order to assist with the children.
The Appellant has a number of regular medical appointments. She testified that she has five appointments with specialists scheduled over the next three months. None of the specialists, including a neurologist, an occupational therapist and a social worker, are located in the small city in which the Appellant and her family live and she requires a vehicle in order to attend her appointments. Since the impoundment of the vehicle, the Appellant has missed two medical appointments because she was unable to reach them.
One of the Appellant’s older children suffers from chronic kidney disease. In the summer of 2016, he was hospitalized in a major municipality and, since his release in late September 2016, he has been required to return to that hospital for dialysis three times a week.
The Appellant explained that her father has three vehicles registered in his name. One of them is used by her father and one is used by her brother who does not live at the family home. The third vehicle, the “CRV”, was formerly used by the Appellant to take her son to the hospital. However, the Appellant recently returned this vehicle to her mother for her mother’s use. She noted that even though her mother now works from home, she also does occasional travel for the business and needs a vehicle at those times. She also indicated that her youngest child is only fifteen months old and her father does not like her mother to be alone with the child without the use of a vehicle.
Therefore, the Appellant borrowed $2,500 from C.E. and purchased the impounded vehicle to enable her to drive her son to the hospital. The vehicle was registered in her name on December 2, 2016. It was impounded on December 3, 2016. Since the impoundment, the Appellant’s father has been driving her son to and from the hospital using his own vehicle. However, the Appellant noted that her father needs to attend to his business and that he also suffers from diabetes.
After the impoundment, the Appellant was given a vehicle by a friend, which she registered in her name. However, she noted that the vehicle quickly became inoperable after the drive shaft fell out of it.
The Appellant explained that the day before the impoundment, the impounded vehicle was delivered to the suspended driver’s home, which is located a distance from the Appellant’s home. The Appellant drove the CRV to the suspended driver’s home. On the day of the impoundment, she drove the impounded vehicle to the suspended driver’s place of work, approximately a 15 minute drive from his home. Her plan was that she would then return to her home driving the CRV. She and her father would then return together in the CRV and she would drive the new vehicle home.
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 driving while disqualified under the Criminal Code of Canada and as a result the driver’s licence of the driver was suspended to March 20, 2017.
Constable Mark Kowalyk of the Ontario Provincial Police testified on behalf of the Registrar. Constable Kowalyk indicated that on December 3, 2016, a witness called police stating that he had seen the suspended driver, operating the impounded vehicle with a female passenger in the vehicle. The witness indicated he saw the suspended driver drop the female passenger off at his home and continues to drive the vehicle. Officer Kowalyk attended the scene when the vehicle, which was parked, was impounded. He was not there and does not know if the suspended driver was behind the wheel of the vehicle at the time. Approximately ten minutes after Constable Kowalyk arrived at the scene, the Appellant arrived and provided him with the vehicle’s ownership, insurance and new licence plates. The Appellant told Constable Kowalyk that the driver was operating the vehicle without her consent and that she needed the vehicle to take her sick child to the hospital. Constable Kowalyk searched the vehicle and found a number of tools as well as a man’s jacket in the vehicle.
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.
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 appeal is being considered on the basis of section 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 whether exceptional hardship will result from an impoundment. First, the Tribunal must consider whether no alternative for the impounded vehicle is available and if there is no alternative, then whether the impoundment will result in: a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or b) 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.
These factors may be considered only if the owner 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.
The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
All elements must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
Exceptional Hardship
With respect to the issue of exceptional hardship, section 10 of Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment.
Based on the facts and arguments raised on this appeal, to establish exceptional hardship the Regulation requires that the Appellant must first prove that there is no alternative to the impounded motor vehicle and, if there is no alternative available, that the impoundment of the vehicle results in a threat to the health and safety of someone “ordinarily transported by the motor vehicle”. The evidence is that the Appellant’s father has two vehicles which are located at the family residence. The Appellant’s father requires one of the vehicles for his business use; the Appellant requires a vehicle to attend her and her son’s medical appointments; and the Appellant’s mother requires one vehicle both for business reasons and for security when taking care of the Appellant’s children.
The Tribunal does not doubt the Appellant’s testimony with respect to her need for a vehicle both to attend her own medical appointments and to transport her son to a hospital in a major municipality for three weekly dialysis appointments. However, the evidence is that the impounded vehicle was never used for these purposes. It was registered to the Appellant on December 2, 2016, only the day before it was impounded. The Appellant’s testimony is that the only time she operated it, was to drive it from the suspended driver’s home to his workplace. In this regard, the Tribunal notes that the Registrar‘s representative questioned the credibility of the Appellant’s testimony about why the vehicle was at the suspended driver’s workplace and about her plan to pick it up with her father. However, notwithstanding the Registrar’s representative’s expressed doubts about the intended use of the vehicle, the Tribunal accepts the Appellant’s testimony that the vehicle was purchased to enable the Appellant to drive her son and thereby alleviate the additional pressure on the two household vehicles created in late September by the need to drive to hospital three times a week.
However, the impounded vehicle never reached the Appellant’s home and was never used by her family. The impoundment of the vehicle was not the direct cause of the difficulties which the Appellant described. She and her family are in the same situation they were in before the impounded vehicle was purchased. While the Tribunal acknowledges that scheduling the use of the two vehicles may be a complex task and has caused some inconvenience, the family has been able to manage with the use of those two vehicles since the end of September, 2016 when the Appellant’s son’s dialysis appointments began. The only exception has been that the Appellant missed two medical appointments which she has had to reschedule. In effect, the situation described by the Appellant existed before the vehicle was impounded and has not changed as a result of the impoundment. The Appellant has the same options available to her as she did before she purchased the vehicle. As the Registrar’s representative noted, there is no one who was “ordinarily transported by the motor vehicle” in this case. Given that the Appellant was able to cope without the impounded vehicle before the impoundment, it cannot be said that there is no alternative to the impounded motor vehicle, as required by the Regulation.
The evidence is that the Appellant does have alternatives available to the use of the impounded vehicle, and therefore the Appellant has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Member
RELEASED: January 5, 2017