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
Between:
Appellant Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Place and date of hearing:
By teleconference April 6, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
A hearing was held on April 6, 2017 by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).
The Appellant’s vehicle was impounded on March 8, 2017. The Appellant filed her appeal on March 16, 2017. A friend, whose licence was suspended for life as a result of a Criminal Code conviction was driving the vehicle at the time of the impoundment. A Notice of Impoundment was issued for a period of 45 days.
The Appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. The Appellant is a single mother of three children and is the sole source of income for the family. She requires a vehicle to get to work as they live in a rural area. She has relied on friends and neighbours and has on several occasions had to take a taxi which is costly. Further, the cost of the impoundment is significant. She is asking the Tribunal to order the Registrar to release her vehicle.
The Tribunal is required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and regulations. While the impoundment of the vehicle has resulted in increased costs for the Appellant and a dependence on others, the Appellant has not demonstrated that there is no alternative to the impounded vehicle, as she and her children have been, for the most part, able to attend work and school. Accordingly, the Tribunal confirms the impoundment.
ISSUE
- Will the impoundment result in exceptional hardship?
EVIDENCE
The owner of the impounded vehicle is the Appellant. The motor vehicle, a 2014 Chevrolet CLT, was impounded on March 8, 2017.
The Appellant testified that she lent her vehicle to her friend because he said his truck was in the garage and he had some errands to do. She had seen him drive on many occasions so assumed he had a valid licence. She had no idea that he had a lengthy driving record. She lives with her children in a small community. There is no public transit available. Her children take the bus to school. She works at two different hospitals as an office administrator. Her employment is classified as ‘casual’ in that she gets called to fill in when other staff are absent. The number of days she works each week varies according to the hospitals’ needs.
They live equidistant between the two hospitals, each being about a 10 minute drive from her home. She missed two days of work because she did not have a drive and on those occasions did not have the money to pay for a taxi. She has not told anyone about her situation, feeling too embarrassed to do so. Taxi fare is $26.75 each way. She has taken a taxi six times which is approximately $60 for a round trip (her employer pays for cab fare only when weather conditions require an employee to take a cab). On other occasions, friends and neighbours have driven her to work. As well, she has borrowed her ex mother-in-law’s car, a few times. Friends and neighbours have also helped with drives for groceries and picking up her daughter from her after school activities.
The Appellant has had to reschedule one doctor’s appointment, to late May.
A significant concern for the Appellant is the cost of the impoundment, which will be approximately $3000. She did send a message to her friend about the situation, but his response indicated that he will not help her out. She has talked to a lawyer about possible legal action against him to recover her costs, but has concluded that it may not, in the circumstances, be worth the effort given the likelihood of success. The Appellant stated that she has been able to meet all of her financial commitments, except for her hydro bill.
Mr. Grootenboer provided, in documentary evidence, a copy of the Ministry of Transportation records indicating that 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 indicates that the driver at the time of the impoundment had been convicted of a Criminal Code offence as a result of which his licence is suspended until November 28, 2021. The documents also indicate that the impounded vehicle is the only one registered to the Appellant.
LAW
Under 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.
Subsection 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 (d) of subsection 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.
(d) that the impoundment will result in exceptional hardship.
- Section 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.
- If 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.
- In 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.
- The 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).
Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may not consider whether the impoundment will result in inconvenience to any person.
Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.
ANALYSIS
In summary, the Appellant stated she requires her vehicle to get to work to provide for her family and for their daily activities. They are very dependent on the vehicle given where they live. It is difficult to keep relying upon other people to help her out. Given that she is a single parent receiving no child support from her children’s fathers, the additional expense of the impoundment will cause hardship. She stated that she has learned her lesson and will not be lending her vehicle to anyone. She submitted that her ‘crime’ was trusting someone.
Mr. Grootenboer submitted that that the Appellant has alternatives to the impounded vehicle. Since the impoundment, she has found alternate means of transportation to get to work, buy groceries, and to allow her daughter to participate in her after school activities. He submitted that the loss of the vehicle is an inconvenience, but exceptional hardship, as defined by the Regulation, has not been met.
The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities.
In 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 has resulted in an inconvenience for her family and extra financial costs.
Since the Appellant’s vehicle was impounded, she has missed two days of work. She has used taxis to get work on six occasions. She has also been fortunate that neighbours and friends have been able to assist though she, understandably, does not wish to be so dependent on the goodwill of others. Her children get to school by bus so have not missed school due to the impoundment of the vehicle. One medical appointment had to be rescheduled. There is no question that the loss of a vehicle has had an impact on the Appellant. It is inconvenient and the resulting costs are not insignificant. However, the Appellant was unable to prove she has no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship under the Regulation.
The Tribunal understands the Appellant’s concern about the costs associated with the impoundment at the end of the 45 day period. While the Tribunal appreciates that the cost of the impoundment fees will be difficult for the Appellant to pay, with little likelihood that she will be able to recover costs 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 show no alternative to the impounded vehicle, she has not provided enough evidence to show that her financial loss would be significant and lasting.
The Tribunal accepts that the Appellant has endured some hardship as a result of the impoundment of her vehicle, and is sympathetic to her circumstance, but she has not established exceptional hardship as defined by the Act and her appeal must therefore fail. This legislation is very prescriptive and the grounds on which the Tribunal can order the release of a vehicle are very limited, which can in some situations result in harsh consequences for an appellant.
Accordingly, 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
- For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
LICENCE APPEAL TRIBUNAL
________________________
Patricia McQuaid, Vice-Chair
RELEASED: April 7, 2017