Appellant v. Registrar of Motor Vehicles, 2017 CanLII 49175

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-11

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: Geneviève Blais, Member

Appearances:

For the Appellant: Robert Tomovski, Counsel

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference May 2, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1. A hearing was held on May 2, 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”).
2. The Appellant’s vehicle was impounded on April 5, 2017. His 41 year old son, whose licence was suspended as a result of a conviction for driving with more than 80 mgs of alcohol in his blood, was stopped early in the morning, the vehicle was detained and a Notice of Impoundment was issued for a period of 45 days. The Appellant filed his appeal on April 10, 2017.
3. The Appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. The Appellant was not present during the hearing. The Appellant’s Counsel referred to information provided by the Appellant as part of the Notice of Appeal and submitted that the Appellant requires the vehicle to travel to his daughter-in-law’s house to help her with the care of a new born child, other grandchildren and household duties. A second vehicle owned by the Appellant is not available to him as his wife uses the second vehicle to drive to and from work. Counsel further submitted that there are no reasonable alternatives to the impounded vehicle and that the Appellant faces unusual circumstances which satisfy the requirements of the ground for exceptional hardship. He is asking the Tribunal to order the Registrar to release the vehicle.
4. 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 caused inconvenience and difficulty to the family, the Appellant has failed to provide sufficient evidence to demonstrate that there is no alternative to the impounded vehicle and prove the ground for appeal of exceptional hardship. Accordingly, the Tribunal confirms the impoundment.

ISSUE

Will the impoundment result in exceptional hardship?

EVIDENCE

5. The owner of the impounded vehicle is the Appellant. The motor vehicle, a 2014, CHRY, TWC vehicle was impounded on April 5, 2017. The Appellant filed an appeal in this case on April 10, 2017.
6. The Appellant was not present at the hearing. During the hearing, the Appellant’s Counsel referred to the Appellant’s Notice of Appeal and supplementary information orally provided by the Appellant to Counsel, who transposed the information and filed it with the Tribunal. The suspended driver is the Appellant’s 41 year old son, who is married. The vehicle was parked at the son’s house as the vehicle was shared with the Appellant’s daughter-in-law who had a set of keys for the vehicle. The son used the Appellant’s vehicle to drive to work early in the morning and was stopped by the police.
7. The Appellant is a 68 year old retiree who resides with his wife in a large metropolitan area. The Appellant owns a second vehicle which is used by his wife to drive to and from work. The Appellant, in his Notice of Appeal and Mr. Tomovski, in his statements to the Tribunal, indicate that exceptional hardship has occurred from the loss of the vehicle. The Appellant’s daughter-in-law had a third child at the end of March 2017 and requires bed rest and assistance to care for the new born. The Appellant, who resides approximately 20 kms away from the home, uses the impounded vehicle to drive to the home to provide daily help with the newborn baby, other grandchildren and household duties. He has never taken transit in his life. The Appellant submits that he is unable to take transit to the home as he would have to walk to a bus stop which is one km away to catch the GO train. This walk would cause him unnecessary physical pain. He contends he would not be able to physically endure the extended one hour journey to reach his son’s home. He indicates that financially he is unable to rent or purchase another vehicle.
8. Mr. Tomovski submitted that there are no reasonable alternatives to the impounded vehicle. The Appellant cannot be expected to walk to public transit as this is a risk to his health. He suffers from back pain and high blood pressure. The Appellant cannot use the second vehicle as his wife needs it to commute to work. However, she does not use the vehicle while at work. Her health is not good and to expect her to do without a vehicle is also a threat to her health and safety. The Appellant is the only person who can assist his daughter-in-law at this time. Her health and safety is compromised as a result of the loss of the vehicle. A medical appointment scheduled for the new infant had to be rescheduled as the Appellant was unable to provide transportation.
9. Mr. Kapur, Agent for the Registrar, 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 indicated that the driver at the time of the impoundment had been convicted of Driving with more than 80 mgs alcohol in blood, under the Criminal Code of Canada on January 12, 2016 and his licence was suspended until January 12, 2019. Mr. Kapur stated that Ministry of Transportation records indicate the suspended driver has not held a valid licence since 2005. Mr. Kapur provided the suspended driver’s record of violations, which include one previous 7-day impoundment in 2015 and four other driving violations in 2014. All of the incidents involved the Appellant’s vehicle.
10. Mr. Kapur submitted that the Appellant has reasonable alternatives to the impounded vehicle and not all options have been considered. Access to public transit is feasible with a bus stop a few minutes away from the Appellant’s house. Although the journey may take 40 minutes longer to reach his destination than by using the vehicle, it is not hardship. If the Appellant can care for a young baby, other grandchildren and perform other household duties during the day, it stretches credulity that he is unable to endure a short walk to reach public transit and a transit ride which is in the opposite direction of busy morning and evening commuters.
11. Mr. Kapur further submitted that the Appellant owns a second vehicle. A reasonable alternative could entail the Appellant driving his wife to work and picking her up at the end of the day. He submitted that Mr. Tomovski is not in a position to answer many questions related to the loss of the impounded vehicle. When asked as to how the Appellant has managed since the vehicle was impounded, Mr. Tomovski was unable to provide any particulars in this regard. Mr. Kapur challenged the veracity of some of the Appellant’s information, arguing that the personal situation is greatly exaggerated and there is no documentary evidence to confirm the Appellant’s statements with regard to his health condition and the critical need he provides with regard to his daughter-in-law’s situation. The reasons provided by the Appellant to dismiss the available alternatives to the impounded vehicle are poor. Direct testimony by the Appellant would have been of assistance in this case. Mr. Kapur submitted that the evidence before the Tribunal does not support the ground of exceptional hardship.

LAW

12. 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.
13. 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 paragraph (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.

14. Subsection 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 under section 55.1.
15. 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 impoundment period.

16. 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.

17. 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.

18. 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).

19. Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
20. 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.

SUBMISSIONS

21. In summary, Counsel for the Appellant submitted that there are no reasonable alternatives to the impounded vehicle. The Appellant is not a young, able-bodied individual and therefore Mr. Kapur’s submissions as to the alternatives to the impounded vehicle cannot be considered as reasonable. He further submits that the loss of the vehicle constitutes a threat to the health and safety of other persons.

22. Mr. Kapur submitted that the suspended driver’s history of violations suggests he had regular access to the Appellant’s vehicle. The Appellant’s information is lacking in credibility and he has not looked at every reasonable option to carry on his daily activities without the impounded vehicle. There is a lack of credible evidence to support that there is no available alternative to the impounded vehicle. Exceptional hardship, as defined by the Regulation, has not been met.

ANALYSIS

23. The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities.
24. 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 the Appellant 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.
25. The first hurdle is whether there is no reasonable alternative to the impounded vehicle. Counsel for the Appellant submits that there are no alternatives to the vehicle, given the Appellant’s health and age. As the Appellant was not present at the hearing, additional particulars to the information provided by the Appellant were not possible. There was no documentary evidence to support the statements made about the Appellant’s health or what arrangements he has made to get around since the impoundment.
26. The Tribunal accepts Mr. Kapur’s submission that there is a lack of credibility in the Appellant’s claim that he is physically unable to walk a few minutes to a bus stop and endure an extended route if he were to use public transit, noting that at the same time he is capable of caring for a new born infant, grandchildren and performing other household duties, which in themselves could be considered rather onerous.
27. The Appellant does own another vehicle which supports the finding that there is an alternative. Although it was stated that his wife requires the second vehicle to drive to and from work, no evidence was put forth to support the option of the Appellant driving her to work and using the vehicle to travel to his son’s residence for the day. In the end, the Tribunal does not have enough evidence to support the claim that the Appellant has looked at every reasonable option to carry on his activities without the impounded vehicle. Accordingly, the Tribunal finds that the Appellant was unable to prove that he has no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship under the Regulation.
28. Counsel for the Appellant raised another reason for exceptional hardship – a threat to health or safety of any person – which the Tribunal finds is not supported by the evidence. There was no documentary or medical information to support the health condition of the Appellant’s daughter-in-law. In his own statement, the Appellant indicated that a nurse comes to check on his daughter-in-law, who resides with the suspended driver. It was also established that access to 911 and hospital services are readily available. There was information about the Appellant’s grandchild missing one medical appointment as a result of the loss of the vehicle and having to reschedule the appointment to a later date. Despite this inconvenience, there was no evidence that this missed appointment was significant enough to be seen as a threat to anyone’s health or safety.
29. The Tribunal accepts that the impoundment has been inconvenient and having one vehicle for them as a family is difficult, though it cannot be said to be a threat to the heath and safety of the Appellant. 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.
30. 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

31. 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.

RELEASED: May 11, 2017

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member