Date: 2017-12-28

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:

S.L.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: S.L., self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: December 19, 2017

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1A teleconference hearing was held on December 19, 2017 to consider the appellant’s appeal of the impoundment of her 2010 Hyundai (the “vehicle”) on December 2, 2017 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to her employment, to get her daughter to medical appointments, to get her son to school and to tournaments and to get groceries.

B. ISSUES:

3The issue to be determined is whether the impoundment will result in exceptional hardship.

C. CONCLUSION:

4I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.

D. LAW AND ANALYSIS:

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or

(d) that the impoundment will result in exceptional hardship;

7The appellant seeks to have her vehicle released on the basis that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

8I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I 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.

10If 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 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.

11In 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

12The 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).

13Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

14The appellant works shift work and needs her vehicle to get to her place of work. She testified that since the impoundment she has been able to get to work by getting rides from coworkers, taking a cab and the bus. As a result, the appellant does not require the impounded vehicle to get to her employment.

15The appellant said she needs the vehicle so that she can take her pregnant daughter to medical appointments in another municipality. She testified that her daughter had to attend a medical appointment once since the impoundment and the appellant had to pay $25.00 for a ride to get her daughter there.

16The appellant said she needs the vehicle to drive her son to school and to his sports tournaments. He is in grade ten. She said there is no school bus for her son where she lives. She has had to depend on others to take her son to school and to his sports activities. He has missed a couple of days of school and some tournaments. However, she also testified that some times since the impoundment, his coaches have been driving him. After December 22 and until January 8, 2018 her son will be on school break so this will not be an issue. I find that the appellant’s son will not miss a significant number of sports tournaments given that his coaches have been willing to drive him to these events.

17The appellant has said that she has had to take cabs to get groceries which she can’t afford. However, she also said that there is a bus available to her.

18Although the appellant spoke of inconvenience getting to her employment, getting her daughter to medical appointments, getting her son to school and to sports tournaments and getting groceries, inconvenience is not a factor which I can take into consideration. As she has alternatives to the impounded vehicle I am unable to consider the appellant’s submissions related to financial or economic loss.

19I find that the appellant has alternatives to the impounded vehicle available to her. Therefore I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

20Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.