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: 2017-10-24

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:

E.B. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: E.B.

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference:

October 5, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on October 5, 2017 to consider the appellant’s appeal of the impoundment of his 2015 Chevrolet (the “vehicle”) on September 1, 2017 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to him because his daughter needs the vehicle to attend her 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 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 his 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 alternative modes of transportation available to the impounded vehicle.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that must be considered by the Tribunal 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 impoundment period.

10If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), the Tribunal 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, the Tribunal 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 purchased the vehicle for his daughter to drive to the nearest town which is approximately one and one-half hours drive away from where the appellant and his daughter live. His daughter needs the vehicle to purchase groceries and to attend her weekly medical appointments in town and was ordinarily transported by the motor vehicle. Sometimes his daughter gives rides to others who need to go into town. The appellant testified that his daughter has no other means to travel to town. At the time of the impoundment that vehicle was not being driven by the appellant or his daughter but by another relative. Since the impoundment she has had to rely on friends and neighbours to drive her and must pay them. The appellant and his wife both have their own vehicles but neither of them is able to drive his daughter to her medical appointments due to their long hours, busy work schedules and frequent overnight absences required by their respective jobs.

15The appellant’s daughter testified that she is a single mother caring for a three-year-old child. The child attends school close to where they live and she walks the child to school and home again for lunch and at the end of the day. On September 11, 2017, after the impoundment, she obtained part time employment at the school and works there three hours a day in the evenings. She expects to earn approximately $600.00 monthly from this employment. In addition, she currently receives $770.00 monthly from social assistance. The appellant’s daughter testified that she must attend a medical appointment in town each Thursday because she is in a treatment program for substance abuse. If she misses even one of her Thursday appointments she will be required to attend the treatment program five days a week, will lose certain privileges and could become seriously ill. She testified that since the impoundment she has had to rely on friends and neighbours to drive her to her medical appointments and has not missed an appointment. She said that she has to pay $80.00 to $100.00 per trip to town to cover the cost of gas for whoever is driving her and this cost is a hardship to her because of her limited income and the expense of caring for her child. She lives alone and the child’s father does not contribute to any expenses for her or the child.

16Although the appellant and his daughter spoke of inconvenience regarding the need to find others to take her into town to attend her medical appointments, this is not a factor which the Tribunal can take into consideration.

17As the appellant and his daughter have been able to arrange for friends and neighbours to drive the daughter to town for her medical appointments and other needs, the appellant has found an alternative to the impounded vehicle. The alternative she has found, having friends and neighbours drive her to her medical appointments, is a reasonable alternative for her considering her income and family status given that the daughter would have to pay approximately the same amount for gas even if she were to drive the appellant’s vehicle to her medical appointments. Therefore, I am unable to consider the appellant’s daughter’s submissions related to financial or economic loss.

18The Tribunal finds that the appellant has alternatives to the impounded vehicle available to him and to his daughter. Therefore, the Tribunal finds 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, the Tribunal confirms the impoundment of the appellant’s vehicle. The vehicle will remain at the impoundment facility for the remainder of the impoundment period.