Licence Appeal Tribunal
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:
S.K.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Panel: Joanne E. Foot, Member
Appearances:
For the Appellant: S.K., Self-Represented
For the Respondent: Sanjay Kapur, Agent
Place and Date(s) of Hearing: By Teleconference
October 9, 2018
REASONS FOR DECISION
A. Overview
1The appellant is a married woman in her twenties who has a four-year-old son. The appellant’s husband, F.K., had his driver’s licence suspended as a result of convictions under the Criminal Code resulting from an incident of impaired driving in 2013.
2On August 20, 2018, F.K. was stopped by a police officer while driving the appellant’s car. The police officer determined that F.K.’s licence was suspended as a result of these convictions. As a result, the police officer detained the appellant’s car and directed that it be removed to an impound facility for 45 days.
3The appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. She submits that she and her husband need the vehicle to travel to and from work and to take their son to daycare. She further submits that they are not in a position to afford to pay the impoundment fees. The appellant has asked that the Tribunal order the Registrar to release the vehicle, with the result that the Registrar would reimburse the amount of the impoundment fees paid by the appellant a few days prior to the hearing.
4I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) and regulations.
5While the impoundment of the appellant’s car has caused stress, inconvenience and financial strain for the appellant, the appellant indicated that she had employed a number of alternative methods of transportation including purchasing other vehicles, using public transit and accepting assistance from friends and family, in order to attend work, transport her child to and from daycare and to run errands. Accordingly, I confirm the impoundment.
B. ISSUE
6The sole issue raised by the appellant in this appeal is whether the impoundment results in exceptional hardship within paragraph (d) of s. 50.2(3) of the Act.
C. LAW
7Under the Act, where a police officer is satisfied that a person was driving while his or her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the Act sets out the scope of the authority, the impound period and other requirements and obligations. The impoundment period is 45 days if there has been no previous impoundment in the last two years.
8Subsection 50.2(3) of the Act lists a number of 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 subsection 50.2(3), which states:
50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(d) that the impoundment will result in exceptional hardship.
9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal 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(3)(a) of the Regulation, is that there must be no alternative to the impounded vehicle. This 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.
10The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in Subsection 50.2(3) of the Act.
11Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.
D. ANALYSIS
12The appellant testified about the circumstances which led to her husband driving her vehicle, explaining that her son had been ill and was running a high fever. She further indicated that after attending a doctor’s appointment with her son, her husband drove to a pharmacy about one kilometer from their residence to have a prescription filled. When questioned, she indicated that she was well aware that her husband’s driver’s licence was suspended and that he was not permitted to drive. She further acknowledged that her husband, F.K., had a conviction for driving while disqualified in 2016 and that she knew that the vehicle could be impounded.
13The appellant also explained that having the obligation to drive her husband to his job and elsewhere is a significant burden on her and that she is experiencing a great deal of stress in her life and believes that her health is suffering as a result. She has worked at her current job for about two months and stated that the couple has, essentially, no money. On the weekend prior to the hearing, her car was broken into and all of her identification documentation was stolen. She submits that the entire situation will cause her lasting hardship.
14In order to regain possession of her car at the end of the impoundment period, the appellant borrowed money from her mother and her in-laws that they could ill afford to lend her, her mother having given the appellant money that had been earmarked for rent. As well, the appellant paid some of the impound fees on her credit card.
15In order to establish exceptional hardship under s. 50.2(3)(d) of the Act, 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 and making arrangements to do without any motor vehicle during the impoundment period. If the appellant is able to establish that there is no alternative, the appellant must then show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(20 or (3) of the Regulation. The appellant submits that the impoundment has resulted in a financial loss which she is unable to afford.
16The appellant indicated that she had used a number of transportation alternatives while her vehicle was impounded. She and her husband used a portion of their rent money to purchase two uncertified cars. She testified that she had “temporary stickers” for these cars and used these temporary cars for about 25 days of the 45 day impoundment period. She also used public transit to travel to work on at least a few occasions. On other occasions, her husband’s boss was able to drive them to work. As well, her mother and her in-laws helped out with the couple’s transportation needs. Finally, she acknowledged that friends also helped with grocery shopping and other errands.
17I understand that the entire situation has been very difficult for the appellant and that, as a result of the impoundment, the appellant spent more on the impound fees than she feels she can afford. This is clearly an additional burden on the appellant. Unfortunately, the use by the appellant of various alternative means of transportation during the impoundment period means that the “exceptional hardship” ground of appeal under s. 50.2(3)(d) of the Act is not available to the appellant. The appellant had reasonable options for transportation which she, in fact, used and which were within the appellant’s financial means.
18The appellant has now regained possession of the impounded vehicle and I find that the alternatives she employed, including buying other vehicles, using public transit and accepting the assistance of family and friends, are alternatives to the impounded vehicle within the meaning of s. 10 of the Regulation. In consequence, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been met.
E. CONCLUSION:
19For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
____________________________
Joanne E. Foot, Member
Released: October 24, 2018