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:
T.H.N.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Sandeep Johal, Member
Appearances:
For the Appellant: L.N., Agent
For the Respondent: Stella Velocci, Agent
Place and Date of Hearing: Teleconference January 25, 2018
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant is the owner of a 2007 Mazda, who allowed her daughter to borrow the vehicle. The daughter in turn allowed her boyfriend to borrow the vehicle without the appellant’s knowledge. The boyfriend’s licence, at the time the vehicle was impounded, was suspended. The driver was charged under the Highway Traffic Act (“HTA”) with driving while under suspension and the appellant’s vehicle was impounded for 45 days.
2The appellant did not perfect her appeal within the legislated timeline and brought a motion seeking an order from the Tribunal granting an extension of time to file her appeal. The respondent consented to the motion, and on consent of the parties, the hearing was held to hear the merits of the appeal.
3The appellant appealed the impoundment to this Tribunal on the basis that the impoundment will result in exceptional hardship and that the vehicle was stolen. The appellant points out that the loss of her vehicle will result in financial hardship for her daughter and her boyfriend. The appellant asks that the Tribunal order the Registrar to release her vehicle.
B. ISSUES:
The two issues to be addressed in this appeal are as follows:
i. Was the vehicle stolen?
ii. Will the impoundment of the vehicle result in exceptional hardship?
C. RESULT:
4I find that the appellant’s vehicle was not stolen and the appellant has not proven the impoundment will result in exceptional hardship under s. 50.2(3)(a) and (d) of the HTA and s. 10 of the Regulation.
D. LAW:
5Under the HTA, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.
6Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle, and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of paragraphs (a) and (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,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(d) that the impoundment will result in exceptional hardship.
7Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. 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.
8If the appellant is able to establish that there is no alternative to the impounded vehicle, then under s. 10(1), I must consider whether the impoundment will result in:
a. a threat to 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.
9In limited circumstances described below, I may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:
(a) financial or economic loss to any person;
(b) loss of employment or employment opportunity to any person; or
(c) loss of education or training or of an educational or training opportunity to any person.
10Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
11The financial, employment and educational losses may only be considered if the following criteria 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).
12To summarise, the Tribunal may allow this appeal and order the Registrar to release the vehicle if the Tribunal is satisfied that the vehicle was stolen or that the impoundment will result in exceptional hardship.
E. ANALYSIS:
Was the vehicle stolen?
13On the first ground of the appeal, it is my finding that the appellant has not proven that the vehicle was stolen.
14The Divisional Court has provided guidance on what “stolen” means1. The Divisional Court stated:
“In our opinion a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.”
15The appellant allowed her daughter to borrow the vehicle. Her daughter then allowed her boyfriend to borrow the vehicle. The appellant submits that she did not give her consent for her daughter’s boyfriend to drive the vehicle, however no evidence or submissions were made about whether the appellant told her daughter that no one else was permitted to drive the vehicle. Furthermore, there were no evidence or submissions that the daughter’s boyfriend intended to deprive to the appellant of her vehicle, permanently or temporarily.
16There was no statement to the police, to the respondent, to the impound yard or the Tribunal that it was stolen. The appellant did not provide any evidence to show what actions were taken as a result of the vehicle being stolen. There is no requirement to report the vehicle stolen to the police in order to establish “stolen” for the purpose of the impoundment appeal, however in my opinion, more is required from an evidentiary standpoint to show a vehicle is stolen other than to just state it was taken without consent.
17Having determined that the vehicle was not stolen, I will move on to discuss whether the impoundment will result in exceptional hardship.
Did the appellant suffer exceptional hardship?
18It is my finding that the appellant has not shown that the impoundment will result in exceptional hardship.
19According to the appellant, her daughter relies on the vehicle for grocery shopping and taking her child to doctor’s appointments. The cost of the impoundment imposes an exceptional hardship upon her.
20I have little doubt that these costs are difficult to bear. However, in determining whether exceptional hardship will result from an impoundment, Regulation 631/98 states that the Tribunal shall not consider financial or economic loss unless the owner can demonstrate all four of the factors noted above.
21With respect to the first factor, I find that there is a reasonable alternative to the impounded vehicle available to the appellant. The appellant submitted that she has a second vehicle to use and her daughter is able to use public transit or rely on friends for a ride to the grocery store or appointments. It may be rather inconvenient, however according to the Regulation, inconvenience to any person is not a factor that can be considered.
22With respect to the second factor, I find that the loss will not be immediate, significant and lasting. The appellant has a second vehicle and is able to use that vehicle to get to work. The appellant’s daughter does not work or use the vehicle for employment, education or training. Other than an inconvenience, I am not persuaded of any immediate, significant or lasting loss by the appellant or her daughter. I find that this factor has not been satisfied.
23As mentioned, in order for me to conclude that the impoundment will result in exceptional hardship due to financial or economic losses, the appellant must demonstrate all four of the factors listed in s. 10(3) of Regulation 631/98. As noted above, there are alternatives to the impounded vehicle and there is no employment, financial or educational loss that has been established.
24Accordingly, s. 10(2) of Regulation 631/98 prohibits me from considering financial or economic loss to the appellant’s daughter in determining whether exceptional hardship will result from the impoundment.
25I conclude that the impoundment will not result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
26For 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.
LICENCE APPEAL TRIBUNAL
Sandeep Johal, Member
Released: March 1, 2018