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: 2017-10-03

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:

C.A.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: C.A.

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference:

September 5, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on September 5, 2017 to consider the appellant’s appeal of the impoundment of her 2006 Dodge Caravan (the “vehicle”) on July 24, 2017 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to care for her children, to attend medical appointments, and because she is in financial hardship.

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 that 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 of the HTA, 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 does not work outside the home at this time. She is at home caring for her three-month-old infant. Although she is also the mother of three other children, the other children stay with her grandparents during the week and the grandparents take them to school and to daycare. The grandparents bring the children to the appellant for the weekend and pick them up again at the end of the weekend. As a result, the appellant does not require the impounded vehicle to take the children to school or daycare during the week. The children, other than the newborn, are being cared for by other family members. There was no submission made and no evidence brought forward by the appellant that she needs the impounded vehicle to care for her children during the weekend.

15The appellant said she needs the vehicle so that she can attend her own medical appointments and take the newborn to the doctor. The appellant sees a specialist once a week. Since the vehicle has been impounded, she has taken cabs at the expense of her mother and she has borrowed her mother’s vehicle. The appellant has been able to attend all medical appointments except one. The appellant has an appointment for herself and the newborn with her family physician after the 45-day impoundment period has ended. She is hoping to have her vehicle back before this appointment by asking a family member for a loan to pay the impoundment costs and failing that, will ask a family member to loan her a vehicle to attend the appointment.

16Although the appellant spoke of inconvenience regarding her medical appointments, this is not a factor which the Tribunal can take into consideration.

17As the appellant has family members helping her with the children, paying for her cab fare and loaning her a vehicle, she has alternatives to the impounded vehicle. Therefore, I am unable to consider the appellant’s submissions related to financial or economic loss.

18I 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

19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. The vehicle will remain at the impoundment facility for the remainder of the impoundment period.