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.
Between:
Andrew Meinen Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Evelyn Spence, LL.B.
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: September 24, 2020
DECISION AND ORDER
A. Overview
1The appellant, Andrew Meinen, appeals the 45-day impoundment of his motor vehicle. On August 25, 2020, the vehicle was impounded because it was being driven by his daughter (the "Driver"), whose driver's licence was under suspension as a result of a Criminal Code conviction.
2Mr. Meinen appeals the impoundment because it will result in exceptional hardship. He asserts that the impoundment has caused multiple hardships for his family, including his own financial loss, a potential loss of employment opportunity for the Driver, and the loss of education for his young grandson.
B. ISSUE AND DECISION
3The issue to be decided is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H8 (the "Act").
4At the hearing, the appellant also submitted that the vehicle had been stolen at the time it was impounded. This ground of appeal was not raised in the appellant's Notice of Appeal nor was it introduced when the parties confirmed their positions at the case conference.
5For the reasons that follow, the impoundment is confirmed. I find that the impoundment did not result in exceptional hardship, and further, that the second proposed ground, that the vehicle was stolen, was not advanced by the appellant in earnest in this appeal.
C. LAW AND ANALYSIS
6The intent of the Act is to promote public safety by preventing persons whose driver's licenses are suspended for certain reasons from operating motor vehicles. Pursuant to s. 55.1 of the Act, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for various Criminal Code-related offences.
7The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2 of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the 45-day period of impoundment.
8There are limited grounds on which an owner may appeal an impoundment. The appellant bears the burden of proving that they fall within one of the grounds of appeal set out in s. 50.2(3) of the Act.
9In this case, the single ground listed in the appellant's Notice of Appeal ("Notice") and identified in the case conference order was that the impoundment will result in exceptional hardship. However, at the hearing, the appellant further suggested that the vehicle had been stolen, constituting a second possible ground of appeal.
a) Exceptional Hardship
10Section 10 of Ontario Regulation 631/98 (the "Regulation"), made under the Act, sets out the criteria that the Tribunal may consider, and others that it may not, in determining whether an impoundment will result in exceptional hardship. The test for exceptional hardship in the impoundment context is difficult to meet.
11Pursuant to s. 10(1) of the Regulation, the Tribunal's first step, in assessing exceptional hardship, is to consider whether an alternative to the impounded motor vehicle is available. If the Tribunal finds that there is an alternative to the impounded vehicle, then the Tribunal need not consider any other requirements – the ground of exceptional hardship will have failed.
12Sections 10 (2) and 10 (3) together establish other factors that may be considered by the Tribunal in determining the impact of the impoundment, including whether the impoundment would result in financial or economic loss; loss of employment or employment opportunity; or loss of education or training or of an educational or training opportunity. In considering these factors, the Tribunal must consider whether the above losses will be immediate, significant and lasting, and felt by a person ordinarily transported by the vehicle, but not by the person who was driving the vehicle while their licence was suspended (leading to the impoundment). Moreover, these factors can only be considered if there is no alternative to the impounded motor vehicle. Under s. 10(2)(a), under no circumstances can the Tribunal consider "inconvenience to any person" in determining exceptional hardship.
13Following 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. The analysis, in respect of the present matter, follows.
The appellant's circumstances
14Mr. Meinen described his family's living situation and explained that they had been renting a house in Mitchell, near Stratford, Ontario until the middle of June, when he, the Driver and her four-year-old son drove to British Columbia to visit Mr. Meinen's two other children. He testified that, before he and his family began their "vacation," he earned a modest income by doing some construction work but has not been engaged in such work since his departure.
15After two months in B.C., the Meinen family returned to Ontario, where they decided to rent an affordable home via Airbnb in Pembroke, roughly 550 km away from their prior address in Mitchell. He explained that when they settled on the Pembroke location, he hadn't been aware of how far away it was from Mitchell, which is where his grandson's father, who is separated from the Driver, resides. The plan had been to rent the home in Pembroke for one month, from August 18, and thereafter the family would return to Mitchell where they would find another home to rent.
16Mr. Meinen stated that while their Pembroke rental is within the town limits, he has a serious, long-standing disability and is not able to walk the roughly 12-kilometer round trip to the shopping centres. Since the car was impounded only days after their arrival in Pembroke, Mr. Meinen explained that the family has "made do" by taking taxis to get groceries, do the laundry and take care of other household needs. This has cost him approximately $100 per week.
17The legal threshold for confirming whether there is an "alternative to the impounded vehicle" is not whether the appellant owns or has access to a second vehicle. Instead, s. 10 (4) of the Regulation sets out what an appellant must show in order to meet this initial prong of the test, as follows:
In order to show that no alternative to the impounded motor vehicle is available… 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.
18Mr. Meinen testified that his financial circumstances are poor. He is not presently working, and his income is now limited to receiving the temporary Canadian Emergency Relief Benefit ("CERB"), in addition to monthly disability benefits. Mr. Meinen stated that he cannot afford to rent a new vehicle, nor can he pay the $2,800 to have the impounded vehicle released. He has extended his family's stay in Pembroke until October 1, and if the vehicle is not released until after the 45-day impoundment period ends on October 9, his family will need to stay on and rent a motel for the further period. Fortunately, Mr. Meinen is not paying rent in two locations – he stated that the cost of the Airbnb in Pembroke equals about the same as the rent he had been paying in Mitchell.
19Mr. Meinen testified that he is in good physical health, despite his underlying disability. He is aware that there is a hospital in Pembroke, should he or his family have any emergency medical needs. There is a need for him to see a specialized physician in Stratford on an annual basis, however Mr. Meinen made it very clear that this appointment has not been fixed and that, because of COVID-19, appointments are only being scheduled as strictly needed. He further stated that he is trying to avoid all contact with hospitals during this time, unless absolutely necessary.
20Similarly, Mr. Meinen reported that his grandson, who is ordinarily transported by him in the vehicle, is "doing well," aside from the fact the child has not been able to see his father for the past three months. Mr. Meinen explained that, while the boy's parents had planned to have him start preschool in Stratford in the fall, they had not settled on whether he would attend due to the ongoing concerns with COVID-19.
21Mr. Meinen's Notice outlined a number of hardships that the impoundment has caused upon his daughter, the Driver, however these were not advanced by him at the hearing. In any event, the Tribunal would have been precluded from considering the stated hardships on the Driver under s. 10(3)(d) of the Regulation.
22Notwithstanding the financial hardship and inconvenience the appellant alleges to have experienced as a result of the impoundment, the Regulation prohibits the Tribunal from considering financial or economic loss or loss of education in determining whether exceptional hardship exists, unless the appellant is able to demonstrate that there is no alternative to the impounded vehicle.
Alternative to the impounded vehicle
23In this case, I accept that the impoundment has been costly for the appellant and difficult to manage, particularly with his young grandson being so far away from his father. However, in my view, while these difficulties may amount to significant inconveniences, they do not rise to the level of exceptional hardship within the meaning of the Act. In particular, the evidence is clear that there is an alternative to the impounded vehicle, in that Mr. Meinen and his family have been regularly availing themselves of taxis to meet their immediate needs.
24Additionally, and recognizing that he and his family are a long way from Mitchell, where they intend to return to live, Mr. Meinen did not suggest there was any immediate need to return there. Moreover, he raised the possibility that the family might need to take a bus back to Stratford if he is not relieved of the impound release fees. This option would have been open to him throughout the impound period as well.
25Given that I have found there is an alternative to the impounded vehicle available, I do not need to consider the other provisions of s.10(1) of the Regulation.
b) Stolen Vehicle
26The suggestion that the vehicle had been stolen by the Driver, signifying a second possible ground of appeal, was elicited by the respondent in its cross-examination of the appellant.
27Specifically, in reply to Mr. Kapur's questioning regarding whether Mr. Meinen knew that the Driver's licence was suspended at the time she was stopped by police, Mr. Meinen replied that he did. He further said that he has consistently been very firm with the Driver that she could never take his vehicle while her licence was suspended. He asserted the Driver has always been a "very difficult child", however, and that on the day the vehicle was impounded, she took the car keys from the bedroom where Mr. Meinen was sleeping and drove the vehicle without his knowledge or permission. In so doing, he stated that she had, effectively, stolen the vehicle, elaborating quickly that he did not report the vehicle stolen to the police or take any other steps to address the theft.
28Notwithstanding Mr. Meinen's evidence, the respondent objects to the Tribunal considering the "stolen vehicle" as a ground of appeal, asserting that the only ground the Tribunal may contemplate is the ground of exceptional hardship. In so arguing, the respondent submits that the grounds of appeal must be limited to what is identified and discussed at the case conference, as this ensures a fair and open exchange between the parties.
29The purpose of a Notice of Appeal is to identify the legal issue(s) and to succinctly set out the relief sought, the ground(s) relied on and the material facts supporting the claim. Its further purpose is to allow the opposing party to know the case it must meet in order to prepare its response. It is an important element of natural justice, contributing to fairness, avoidance of delay, cost-effectiveness and adjudication on the merits of a case.
30While an adjournment of the hearing would have addressed the respondent's concerns about having a sufficient opportunity to respond to any new grounds, the hearing of this appeal proceeded without an adjournment on the basis that I could not reasonably conclude that Mr. Meinen truly intended to advance the ground that his motor vehicle was stolen as part of this appeal. Instead, his statement that the Driver stole the vehicle from him seemed an uncomfortable afterthought, rather than an honestly held theory or belief.
31This is supported, in part, by considering the information the appellant set out in the Notice. Understanding, as it does, that many parties appearing before the Tribunal are not represented by counsel, the Tribunal's Notice of Appeal in respect of motor vehicle impoundments expressly and clearly sets out the four grounds to appeal an impoundment. The first ground that is listed on the form is the ground "that the motor vehicle that is impounded was stolen at the time it was detained." Mr. Meinen did not check off this first ground, but did mark an X on the fourth ground, "that the impoundment will result in exceptional hardship."
32Similarly, there is no mention of any theft in the "Reasons for appeal" section of Mr. Meinen's Notice. In fact, the only reference to any impropriety by the Driver is the appellant's statement that "I have no part in this and [the Driver] will not ever be driving my vehicle again and she is aware of this or there will be consequences."
33Nor is the second ground set out within the case conference order. Case conferences are convened with the parties prior to a hearing with the intent to flush out the nature and scope of the issues in dispute. Agreement on the issues are then captured in the resulting orders. Case conferences are mediated by experienced Tribunal members who understand that their role is to prepare the parties for a hearing, should settlement discussions fail.
34In the particular circumstances of this case, I conclude that it would not be in the interests of justice to consider the additional ground that the vehicle was stolen. As a matter of fairness, appellants are expected to identify their grounds of appeal in their Notice of Appeal, or failing that, at the case conference. Appellants that wait until the day of the hearing to raise a ground of appeal do so at the risk that the Tribunal will decline to consider the ground of appeal, as a matter of fairness.
D. ORDER:
35Pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment of Mr. Meinen's motor vehicle. The vehicle shall remain at the impound facility for the remainder of the impound period.
LICENCE APPEAL TRIBUNAL
Evelyn Spence, LL.B. Member
Released: October 5, 2020.