Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-12-27

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:

A.W.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: A.W.

For the Respondent: Stella Velocci, Agent

Heard by teleconference:

December 22, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on December 22, 2017 to consider the appellant’s appeal of the impoundment of his 2004 Honda Odyssey (the “vehicle”) on November 11, 2017 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to him because he needs the vehicle to get to his medical appointments, to take his grandparents to their medical appointments and because the impoundment is causing him financial hardship.

B. preliminary issue:

3The appellant did not attend the teleconference hearing on December 21, 2017. The hearing was adjourned from December 21, 2017 at 9:30 a.m. to December 22, 2017 at 1:30 p.m. to give the appellant a further opportunity to attend the hearing.

4The hearing proceeded on December 22, 2017 at 1:30 p.m. at the request of the appellant even though he had not yet been able to obtain any letters from the doctors for his grandmother and grandfather confirming their respective medical conditions. Respondent’s agent conceded that it is not contested that the appellant’s grandparents have medical conditions.

C. ISSUES:

5The issue to be determined is whether the impoundment will result in exceptional hardship.

D. CONCLUSION:

6I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.

E. LAW AND ANALYSIS:

7The 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.

8An 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;

9The appellant seeks to have his vehicle released on the basis that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

10I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

11Section 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.

12If 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.

13In 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

14The 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).

15Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

16The appellant testified that he is on an unpaid medical leave from his work because of his own medical condition. He takes care of his grandmother and grandfather who both have medical conditions that require them to attend medical appointments. Although the appellant lives in an urban municipality and there are taxis available with wheel chair service, he stated that this is not an option for his grandparents because of the inconvenience and the cost. The appellant testified that since the impoundment of the vehicle, family members have taken his grandmother and grandfather to their medical appointments. He said that he has not missed any medical appointments and neither have his grandparents because of this help from family members. As a result, the appellant does not require the impounded vehicle to get to attend his own medical appointments and to take his grandparents to their medical appointments.

17Although the appellant spoke of inconvenience regarding the loss of use of his vehicle during the impoundment period, this is not a factor which the Tribunal can take into consideration.

18As the appellant’s family have been taking him and his grandparents to medical appointments and because taxi service is available if the appellant chooses to use it, the appellant has alternatives to the impounded vehicle. The appellant has said that the impoundment fees will be a financial burden on him. However, because there are alternatives to the impounded vehicle available to the appellant, 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 him. 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.