Licence Appeal Tribunal
Appeal en matière de permis Tribunal
FILE: 10534/MVIA
CASE NAME: 10534 v. Registrar of Motor Vehicles
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.
10534 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: December 5, 2016
REASONS FOR DECISION
Introduction
1This is an appeal by the Appellant from the impoundment of her vehicle on November 10, 2016, after her boyfriend drove it when his driver’s licence was under suspension for an impaired driving conviction. The Appellant had not checked her boyfriend’s licence status before letting him drive her vehicle when they were on a five-hour drive to another city.
2There is no argument about the Appellant having exercised “due diligence” or the vehicle having been “stolen.” The only issue in this appeal is whether the impoundment has caused “exceptional hardship” as defined in the legislation. For the reasons below, the Tribunal finds that the appeal should be dismissed and the vehicle should remain impounded for the 45-day period.
Issue – Did the impoundment cause “exceptional hardship” within the meaning of [s. 50.2(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth)(d) of the [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)?
3The legislative test for this ground of appeal is detailed and strict. Section 10 of Regulation 631/98 (the “Regulation”) under the Highway Traffic Act requires that the Appellant has no alternative to the impounded vehicle. Section 10(4) states: “. . . 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.”
4Even if the Appellant passes this first hurdle of showing no available alternative to the impounded vehicle, the next step for the Appellant is to show that the impoundment will result in a threat to health or safety, or that it will cause a financial, employment or education loss that will be “immediate, significant and lasting.” Furthermore, the impact of the loss must be upon a person ordinarily transported by the vehicle, other than the suspended driver. The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
Facts and Analysis
5The impoundment of anyone’s vehicle for 45 days will of course have a major impact on the owner. In addition to losing the use of the vehicle, the owner must also pay for the towing and storage charges. In this case, the Appellant’s vehicle is being held by a towing company in a city about five hours from her home. It will cost her about $3,400 for the towing charge and daily storage fees for 45 days. Initially, the Appellant rented a vehicle for about nine days, at a cost of about $400. She calculated that 45 days of car rental would cost her almost $1,600, leading to a total financial cost of about $5,000 for this impoundment.
6Due to the high cost of rental, the Appellant looked into buying a used car, and she bought one for $9,000 by setting up a $15,000 line of credit that would cost her $267 per month for four years.
7The Appellant indicated that she needed to have a car because she lives in rural area and works for a township that is 33 km away from her home. There is no nearby bus service, and the closest GO bus station is 17 km away. She also must drive her boyfriend about 14 km to his car pool for him to get to work.
8It is clear that the Appellant needs a vehicle for her work. The issue is whether it is reasonable to expect her to rent a vehicle every day or – in this case – to even buy another vehicle as an alternative to losing her other vehicle to impoundment. The assessment of whether there is an alternative to the impounded vehicle depends upon a number of factors, including the cost of providing that alternative vehicle and the financial situation of the Appellant.
9In this case, the Appellant has a credit card balance of about $3,000, which is more than her usual balance, and increased monthly costs from the $267 a month car loan and increased car insurance premiums due to her newer vehicle. Her annual income is $56,000, although it is only a one-year contract and not a permanent job. The Appellant was a credible witness. She testified that she was struggling enough with rent for her house and bills to pay. However, there is no evidence of any cash flow problem or the kind of financial hardship that would make it appear unreasonable or unaffordable for her to continue with the arrangements she has made to have a vehicle during this time when she has lost access to her impounded vehicle.
10As indicated, the “exceptional hardship” ground has specific legislated tests that must be met. On the facts of this appeal, the Tribunal cannot find that the Appellant has no alternative to the impounded vehicle.
11Furthermore, even if the Appellant could be seen as being able to pass that first hurdle of not having any alternative to the impounded vehicle, the Appellant would not be able to succeed on the other required parts of this test. The Appellant has not missed any work. And the evidence is far from showing that the financial loss caused to the Appellant meets the legislated test of being “immediate, significant and lasting.” In particular, the amount of financial loss faced by the Appellant may perhaps be seen as “immediate” and “significant,” but it does not qualify as being “lasting.”
12To be clear, in making this finding, the Tribunal is presuming that the Appellant will be held responsible for the entire $3,400 in impoundment fees, even if she may end up not paying that money to the towing company to release her ten-year old vehicle with over 300,000 km on the odometer at the end of the 45 days. Furthermore, the Tribunal notes that not all of the cost of the replacement vehicle can be attributed to the impoundment, since the Appellant would have had to replace her impounded vehicle at some point with a newer one, although the Tribunal accepts the Appellant’s testimony that her impounded vehicle was still working well.
13The Appellant feels that the consequences of this impoundment are too harsh. She believes that it is very unfair for her to have paid for the initial car rental, then take on an unexpected four-year car loan, and lose her old but still reliable impounded car and still have a possible liability for $3,400 in impoundment fees, as well as go through so much inconvenience, stress and hardship. However, the legislation is clear and it does not allow the Tribunal to find any middle ground in terms of the amount of the fees or the magnitude of the penalty imposed upon the Appellant.
14The Tribunal finds that the Appellant has not proven the ground of appeal that the impoundment will result in exceptional hardship.
DECISION
The Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for the 45-day period.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair
RELEASED: December 8, 2016