P.B. v. Registrar of Motor Vehicles, 2018 CanLII 100192

Date: 2018-06-19

File Number: 11317/MVIA

Appeal under subsection 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

Between:

P.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: P.B., Appellant

For the Respondent: Sonia De Santis, Agent

Place and Date of Hearing: By Teleconference May 23, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on May 23, 2018 to consider the appellant’s appeal of the 45-day impoundment of her 2016 Toyota. The Toyota was impounded on March 31, 2018 and was returned to the appellant upon payment of the towing and impoundment charges on May 16, 2018.

2The appellant submits that the impoundment of her vehicle resulted in exceptional hardship to her.

ISSUES:

3The issue to be determined is whether the impoundment resulted in exceptional hardship to the appellant.

CONCLUSION:

4On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship as defined in section 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”).

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, 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’s vehicle was being driven by her partner R.O at the time it was detained and impounded. The appellant resides with R.O. and his mother. The appellant acknowledged in evidence that she had asked R.O. to drive a friend home, knowing that R.O.’s driver’s licence was suspended. The vehicle has now been released and the appellant seeks a finding only on the grounds that the impoundment resulted in exceptional hardship to her.

8Section 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 set out in 10(1) of the Regulation is that there is 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.”

7If the appellant is able to establish that there is no alternative to the impounded vehicle then I must consider under s. 10(1), 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.

8In the limited circumstances listed below, I may also consider whether the impoundment will result in the following types of losses as set out 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.

9The financial and educational losses noted above may be considered only 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;

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).

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

11The appellant purchased the subject vehicle, a 2016 Toyota Camry, on December 18, 2017. It was the first vehicle that she had owned, and she bought it under a financing arrangement which requires her to make monthly payments on a loan of approximately nine thousand dollars. She had also been in an accident with a rental car in August 2017 and owed money to the rental company as a result of the accident. At the time of the hearing she testified that the balance outstanding on that obligation was just over one thousand dollars.

12At the end of 2017 the appellant had completed a second term of a Practical Nursing program at Humber College. However, at the time of impoundment, she was not enrolled in a final term, but was employed in a factory doing shift work. She also was approximately three months pregnant.

13In her notice of appeal dated April 9, 2018, the appellant expressed concern that the impoundment would compromise the safety of her unborn child, because of the need to get to appointments and out of concern that an emergency might occur. She noted that her work required her to stand on her feet for nine hours a shift which she found increasingly difficult.

14At the hearing she testified that since her pregnancy she has been able to make all but one pre-natal appointment and that the pregnancy has been proceeding normally. During the impoundment, the appellant took public transit to and from work, to buy groceries and for other appointments. On occasion, her father has helped, for example by driving her to initiate her appeal in this matter, and to retrieve her vehicle from the impound facility. She acknowledges that her parents, who live in the same municipality, have a second car that is used by her siblings, but noted that she had not asked her parents or siblings for the use of that car.

15As of the date of her hearing the appellant had not been working for three weeks and her partner was unemployed. In her testimony, the appellant expressed substantial concern about her financial situation in the context of her expectant motherhood, her wish to provide for her baby and to eventually complete her nursing program.

16Testimony was also provided by A.B., the appellant’s mother. She gave further evidence about the gravity of the appellant’s financial situation because of credit card debts incurred in the appellant’s name by another family member.

17The testimony of each of the appellant and her mother was heartfelt and emotional. The stress caused to both by the additional debt resulting from the impoundment was clear.

18However the evidence is that the appellant was able to make other arrangements for transportation during the impoundment. Therefore the appellant does not meet the first requirement, that is that she had no alternatives for transportation other than the impounded vehicle.

19The difficult financial circumstances in which the appellant finds herself are largely due to obligations incurred prior to the impoundment. There was no evidence given that her current unemployment was a result of the impoundment, nor that her ability to pursue her nursing credentials in the future will be affected by the impoundment, so I am unable to consider the references to these circumstances as factors going to exceptional hardship.

20For these reasons, I find that the appellant has not established that the impoundment resulted in exceptional hardship.

ORDER:

21Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.