R. A. v. Registrar of Motor Vehicles, 2018 CanLII 105105

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: 2018-01-23

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:

R. A. Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jacqueline Castel, Member

Appearances: For the Appellant: Self-represented For the Respondent: Stella Velocci, agent

Heard by teleconference: January 17, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is appealing the impoundment of his motor vehicle on the ground that it has resulted in exceptional hardship.

2The appellant was unemployed at the time of the impoundment and remains unemployed. He has been relying on family members and a friend to provide transportation during the period of impoundment. There is also public transportation in the city in which he resides.

3I am required to determine whether the impoundment will result in exceptional hardship under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).

4I find that the appellant has not demonstrated that the impoundment will result in exceptional hardship. Accordingly, I confirm the impoundment. Reasons follow.

B. ISSUES:

5The appellant raises one issue on this appeal: Will the impoundment result in exceptional hardship?

C. EVIDENCE:

Appellants’ Evidence

6The appellant testified that he was at a party on November 11, 2018, the date on which his vehicle was impounded. He was drunk and knew that he could not drive. A guest at the party, M. M., who he did not know well asked if he could drive his vehicle. He could not tell whether M. M. had been drinking and allowed him to do so. M. M. was stopped by the police for impaired driving and his vehicle was impounded. The appellant acknowledged that he exercised poor judgment in allowing M. M. to drive his vehicle.

7The appellant stated that he was unemployed at the time his vehicle was impounded and that he has not been able to find employment since that time. He is collecting social assistance.

8The appellant also testified that his mother, brother and friend are driving him to job interviews and other appointments. He also stated that there is public transportation in the city in which he resides. In response to a question from Ms Velocci, he confirmed that he has not missed any appointments as a result of the impoundment. He does not have any medical issues.

9The appellant stated that he knows he made a “stupid mistake” and that it “sucks” not having his own vehicle.

Respondent’s Evidence

10Ms Velocci filed the following documents which were admitted into the record:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the appellant as owner;

2. Copy of the notice prepared by the officer who detained the impounded motor vehicle indicating that the driver of the vehicle, at the time it was detained, was determined by a breathalyser to have over 80 mg of alcohol in his system resulting in an automatic 90 day administrative driver’s licence suspension under s. 48.3 and 48.3.1 of the Act;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment; and

4. Copy of the Ministry of Transportation records indicating that the driver of the vehicle, at the time of impoundment, received a 90 day administrative driver’s licence suspension until February 21, 2018.

D. LAW:

11Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Under section 55.1 of the HTA, the impound period is 45 days if there has been no previous impoundment in the last two years.

12Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of paragraph (d) of s. 50.2(3), which states:

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

13Section 10 of O.Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship exists. 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.

14If the appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal is required to consider, under s. 10(1) of the Regulation, whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported in 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.

15In limited circumstances, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

• financial or economic loss to any person;

• loss of employment or employment opportunity to any person; or

• loss of education or training or of an educational or training opportunity to any person.

16The financial, employment and educational losses listed above may only be considered if all 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;

(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).

17Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

18Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

Exceptional Hardship

19To establish exceptional hardship under s. 50.2(3)(d) of the HTA, the appellant must first establish that there is no alternative to the impounded vehicle, which requires that he consider every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle or making arrangements to do without any motor vehicle during the impound period.

20I accept the appellant’s evidence that the impoundment has caused some inconvenience. However, under s. 10(2)(a) of the Regulation, I am not permitted to consider inconvenience, and the appellant has not established that there is no alternative to the impounded vehicle. The appellant was very forthright in disclosing that he has been able to rely on family members and a friend to drive him to job interviews and appointments. The appellant also acknowledged that public transportation is available in the city in which he resides. The appellant has not missed any appointments as a result of the impoundment.

21Given that there are alternatives to the impounded vehicle, the appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

F. ORDER:

22Therefore, for the above reasons, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.