LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended
Between:
Appellant Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and date of hearing:
By teleconference April 19, 2017
REASONS FOR DECISION AND ORDER
A. Overview
1The Appellant is a 59 year old woman who lives alone in the country. Her motor vehicle was driven by her son on March 15, 2017 while she was at home sleeping and recuperating from an illness. While driving the vehicle, her son was stopped by a police officer. After checking the son’s identification, the police officer determined that his driver’s licence was suspended for life as a result of a conviction for dangerous driving. The son failed to remain at the scene and drove away from the officer in the Appellant’s vehicle. As a result, the police officer detained the Appellant’s car the next morning at her home and directed that it be removed to an impound facility for 45 days.
2The Appellant appealed the impoundment to the Tribunal. The basis for the Appellant’s appeal is firstly that the vehicle was stolen by her son and secondly that the impoundment will result in exceptional hardship. There is no public transportation where she lives. She submits that without her car she is forced to rely on others to drive her to appointments and help with groceries. She is asking the Tribunal to order the Registrar to release her vehicle.
3I am required to determine whether the Appellant’s vehicle was stolen at the time it was detained in order to be impounded and whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) and regulations.
B. ISSUES:
4The Appellant raises two issues in this appeal:
a. Was the Appellant’s motor vehicle stolen at the time it was detained in order to be impounded?
b. Will the impoundment result in exceptional hardship?
5The owner of the motor vehicle, the Appellant, must establish the grounds of appeal raised on a balance of probabilities. On a balance of probabilities, I find that the Appellant has not demonstrated that the vehicle was stolen at the time it was detained in order to be impounded. Further, while the impoundment of the Appellant’s car has caused stress and inconvenience for the Appellant, she has not demonstrated on a balance of probabilities that there is no alternative to the impounded vehicle, as she has successfully relied on others for transportation since the impoundment. Accordingly, I confirm the impoundment.
C. EVIDENCE:
6The Appellant testified that on March 15, 2017, she was recuperating at home from double pneumonia. She had been hospitalized for this illness in a nearby town on February 25 and was discharged on March 2, 2017. On March 15 in the afternoon, she was in bed sleeping and on painkillers, antibiotics and oxygen. The Appellant stated that she kept the keys to the vehicle in the house and that her son had a key to the house but he lived elsewhere. She said that he had never driven her vehicle since his licence was suspended, that he was under house arrest and she took him to all his appointments and never allowed him to drive her car. The Appellant said he would have no reason to drive her vehicle.
7The Appellant stated that she was awoken on the afternoon of March 15, 2017 by a police officer who came to her home to inform her that the police were looking for her son to turn himself in, because her son had left the scene after being stopped by a police officer while driving her vehicle that afternoon. The Appellant testified that she was stunned, surprised and shocked by this information. She did not make a statement to the police about the vehicle being stolen and did not press charges. She said that she thought the police would request a statement from her about her vehicle being stolen if necessary and would press charges if appropriate.
8Other than this incident, the Appellant said she had no knowledge of her son ever driving her vehicle. She said that when she was in the hospital, she could not say if he drove her vehicle but he never drove it when she was home. The Appellant testified that her vehicle was returned to her home on the evening of March 15 by a licensed driver. The Appellant stated that she knew her son’s driver’s licence was suspended but she did not take any steps to lock up the keys or have the keys brought to her when she was in hospital. She said that she trusted him. She said that she did not ask her son whether he had driven her vehicle. In her additional written submission received by the Tribunal on April 13, 2017, she stated that her son in his video statement to the police admitted he took the vehicle without her consent.
9G.D., the Appellant’s brother, testified that because the Appellant had been sick, he met with the police on her behalf a few days after the vehicle was impounded to inquire about how she might get her vehicle back. He did not discuss with the police anything about the Appellant’s vehicle being stolen. Detective Constable D. testified. He visited the Appellant at her home on March 15, 2017 to inform her that her son had been driving her vehicle and had left the scene when the police stopped the vehicle. He testified that he has known the Appellant and her son for four or five years and described the Appellant’s reaction to the news as more disappointment than shock. He stated that there was no discussion between himself and the Appellant about how her son came to be driving the Appellant’s vehicle.
10Sergeant K. testified that when he went to the Appellant’s home on the morning of March 16, 2017, the Appellant’s vehicle was in the driveway. It was impounded at that time. He informed the Appellant that her son had been driving her vehicle on March 15 and while she was in the hospital and understood from her comments that she knew this. He stated that she said she did not know her son had taken the vehicle. Sergeant K. testified that the Appellant had the opportunity to make a report that her vehicle had been stolen or press charges but did not do so. Sergeant K. testified that he took a video statement from her son after he was cautioned and had spoken with his lawyer. The son said that the Appellant had given him the keys to her vehicle and some money and asked him to get her some cigarettes. He drove the Appellant’s vehicle because he was trying to help his mom. The son also said he had driven the Appellant’s car to the hospital to see her sometimes. Sergeant K. said he believes the son was honest in this statement.
Will the impoundment result in exceptional hardship?
11In her submission to the Tribunal, the Appellant gave a breakdown of her income and expenses which demonstrates that her income is from two disability pensions and that her monthly expenses exceed her income. The Appellant testified that the towing company charges would be a financial hardship for her to pay given her fixed income. She stated that a one way taxi to the nearest town is $30 each way and she has been quoted $220 a week to rent a car. The Appellant said she cannot afford either of these alternatives.
12Since the impoundment, the Appellant has been driven to appointments by her brother G.D. and her sister and brother-in-law. She has had to rely on these family members to take her to her appointments in the nearby town because she cannot afford to hire a taxi or rent a car. A neighbour has helped with groceries. Otherwise, she is housebound without her vehicle because she lives in the country and does not have access to public transportation.
13The Appellant’s brother G.D. testified. He confirmed that he has been giving the Appellant a lot of support.
D. LAW:
14Section 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. Following a hearing, under s. 50.2 (5) of the Act, the Tribunal may 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.
15The Tribunal is considering the Appellant’s appeal on the basis of section 50.2 (3) (a) which is that the vehicle was stolen at the time it was detained in order to be impounded and on the basis of section 50.2 (3) (d) which is that the impoundment will result in exceptional hardship. The law regarding these two grounds of appeal is set out below.
Stolen Vehicle:
16Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.
17Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraphs (a) of s. 50.2(3), which states:
50.2(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
18In order to establish that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the HTA, the Appellant must prove that the vehicle was taken without the owner’s express or implied consent.
Exceptional hardship:
19Subsection 50.2(4) states that an owner may not rely on the ground of exceptional hardship if a vehicle owned by him or her has previously been impounded.
20Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
…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.
21If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), 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 the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
22In limited circumstances described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:
financial or economic loss to any person;
loss of employment or employment opportunity to any person; or
loss of education or training or of an educational or training opportunity to any person
23The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
24Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
E. ANALYSIS:
Was the motor vehicle stolen at the time it was detained in order to be impounded?
25The Appellant did not tell Detective Constable D. that her son had taken her vehicle without her permission or that he had stolen it when he went to her home on the afternoon of March 15, 2017 to tell her what had happened. The next day when Sergeant K. came to her home, she did not say she wanted to report the vehicle as stolen or give a statement to the police about this. A few days later when the Appellant’s brother went to see the police, there was no discussion about the vehicle being stolen. Her primary concern was to have her brother see if her vehicle could be returned to her. The Appellant did not report her vehicle as stolen or give a statement to the police or ask that a report be made or charges laid against her son at any time up to the hearing.
26No statement was made about her vehicle being stolen in the Notice of Appeal received at the Tribunal on March 28, 2017. The Appellant did not make a submission to the Tribunal about this until April 13, 2017.
27The Appellant admitted that she kept the keys to the vehicle in her home and that her son had a key to her home although he lived elsewhere. She knew he was not allowed to drive. The Appellant did not make any arrangements to have the keys to the vehicle brought to her at the hospital or otherwise safeguarded while she was in the hospital. Sergeant K. testified that he informed her that her son had been driving her vehicle while she was in the hospital and understood from her comments that she knew this. When she returned home from the hospital, the Appellant did not make any arrangement to restrict her son’s access to the keys to her vehicle or her home.
28In her submission to the Tribunal received on April 13, 2017, the Appellant stated that “…my son in his video statement admitted he took the vehicle without my consent.” The evidence at the hearing was that her son said that the Appellant had given him the keys to her vehicle and some money and asked him to get her some cigarettes. He drove the Appellant’s vehicle because he was trying to help his mom. The son also said he had driven the Appellant’s car to the hospital to see her sometimes.
29There is no corroborating evidence of the Appellant’s statement that her son stole her vehicle or took it without her permission. The weight of the evidence indicates that her son drove the Appellant’s vehicle with her consent, express or implied.
30Accordingly, the Appellant has not established that her vehicle was stolen at the time it was detained in order to be impounded under s. 50.2 (3) (a) of the HTA.
Will the impoundment result in exceptional hardship?
31In order to establish exceptional hardship under s. 50.2(3)(d) of the HTA, the Appellant must first establish that there is no alternative to the impounded vehicle, which requires that she consider every reasonable option 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 impound period. If the Appellant is able to establish that there is no alternative, the Appellant must then show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(3) of the Regulation. The Appellant submits that the impoundment charges would be a hardship on her financial situation.
32I accept the Appellant’s evidence of how the impoundment has affected her daily life. Nevertheless, I find that there is an alternative to the impounded vehicle and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the HTA has not been met.
33Since the Appellant’s vehicle was impounded, she has relied on family members and a neighbour to take her to appointments and to obtain groceries. In her submission to the Tribunal received on April 13, 2017, the Appellant states that she has been able to make arrangements to attend nine appointments in two neighbouring municipalities since the date of the impoundment.
34I understand that as a result of the impoundment, the Appellant is required to rely on others for her transportation needs but the fact is that she has received support from others and therefore has a reasonable option having regard to the Appellant’s financial circumstances and needs. As the Appellant has successfully relied on others for her transportation needs, I find that the Appellant’s current arrangement is an alternative to the impounded vehicle within the meaning of s. 10 of the Regulation.
35Because there is an alternative to the impounded vehicle, I am not able to consider any financial loss under s. 10(2)(b) or (c). In any event, the Appellant has not established a financial loss that meets the criteria of the Regulation, as there is no evidence that the Appellant is at risk of any financial loss as a result of the impoundment that is immediate, significant and lasting.
36I understand the Appellant’s concern about the costs associated with the impoundment at the end of the 45 day period because she is not working and living on a disability pension income. While 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.
37Accordingly, the Appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
38For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
Released: April 28, 2017
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair