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:
L.K. Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Jacqueline Castel, Member
Appearances: For the Appellants: Self-represented For the Respondent: Sanjay Kapur, agent
Heard by teleconference: January 18, 2018
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant is appealing the impoundment of her motor vehicle on the ground that it has resulted in exceptional hardship.
2The appellant’s vehicle was impounded because her roommate, a disqualified driver, drove her vehicle while she was at work.
3The appellant used her vehicle to get to and from work, to drive to client meetings and to drive her parents to medical appointments. Public transportation is available in her community. She has been relying on public transportation, taxis and UBER to get to and from work. Her parents have had to rely on taxis, as well as another family member, to get to and from their medical appointments.
4I am required to determine whether the impoundment will result in
Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).
exceptional hardship under the relevant provisions of the Highway Traffic.
5I find that the appellant has not demonstrated that there is no alternative
to the impounded vehicle, and as such, has not demonstrated that the
impoundment will result in exceptional hardship. Accordingly, I confirm the
impoundment. Reasons follow.
B. ISSUES:
6The appellant raises one issue on this appeal: Will the impoundment
result in exceptional hardship?
C. EVIDENCE:
Appellants’ Evidence
7The appellant testified that she left her vehicle at her residence on
September 11, 2017, the date of the impoundment. The vehicle had an
expired licence plate. Her roommate, “E.D.”, drove her vehicle without her
permission and was pulled over by the police because of the expired
licence plate. At this time, the police determined that E.D. was a
disqualified driver and the appellant’s vehicle was impounded.
8The appellant stated that she is gainfully employed as a marketing specialist. She used her vehicle to drive to and from her place of employment and to attend client meetings off-site. Since her vehicle was impounded, she has been working from home, when possible, or using taxis and UBER to get to and from her work place. Her employer has been very supportive about the fact that she no longer has use of a vehicle. However, her employer has not been asking her to attend off-site client meetings, and attendance at these meetings is important if one is seeking promotions at the company.
9The appellant also testified that she used her vehicle to take her elderly parents to medical appointments. Since her vehicle was impounded, her parents have had to rely on taxis to get to and from such appointments. Her brother has also been helping out with her parents over the holidays, but he will be leaving the country in February.
10The appellant stated that she has considerable debts and the cost of getting her vehicle out of impoundment adds to her financial difficulties.
11The appellant emphasized that she has a clean driving record and is a law abiding citizen.
Respondent’s Evidence
12Mr. Kapur filed the following documents which were admitted into the record:
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.
Copy of the notice prepared by the officer who detained the impounded motor vehicle indicating that the vehicle, at the time it was detained, was being driven by a person suspended under the Act, as outlined in paragraph 4 below.
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment.
Copy of the Ministry of Transportation records indicating that the driver of the vehicle, at the time of impoundment, was suspended until February 18, 2018 for driving while disqualified and on February 18, 2013 the driver had been suspended for life for failing to provide breath or blood sample.
D. LAW:
13Under 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.
14Subsection 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.
15Section 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.
16If 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.
17In 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.
18The 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).
19Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
20Following 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
21To 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 she 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.
22I 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.
23The appellant was very forthright in her testimony and readily disclosed that she has been able to rely on taxis and UBER for employment purposes, and that her employer has been very supportive and permitted her to work from home, when feasible. The appellant also disclosed that her parents have been able to rely on another family member, as well as taxis and UBER, to get to and from medical appointments since her vehicle was impounded. Public transportation is also available in the city in which the appellant resides.
24Given 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:
25Therefore, 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.
Jacqueline Castel, Member
Released: January 23, 2018