S.S.J. v. Registrar of Motor Vehicles, 2018 CanLII 117021

Date: 2018-10-22

File Number: 11575/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 of the Act

Between:

S.S.J.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: S.S.J., Appellant

For the Respondent: Stephen Grootenboer, Agent

Place and Date of Hearing: By Teleconference October 9, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on October 9, 2018 to consider the appellant’s appeal of the 45-day impoundment of her 2013 Ford automobile. The automobile was impounded on August 24, 2018 and was available to be returned to the appellant upon payment of the towing and impoundment charges as of the date of the hearing.

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 (“the HTA”).

LAW AND ANALYSIS:

5The owner of a vehicle that has been impounded pursuant to s.55.1 of 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 and impoundment decision only on the grounds set out in s. 50.2(3) of the HTA. In this case, the only ground cited by the appellant is that the impoundment “will result in exceptional hardship”. (s.50.2(3)(d).

7At the time of impoundment, the appellant’s vehicle was being driven by an acquaintance, B.G. who had been visiting with the appellant and asked for the use of her vehicle to drive to the bank. The appellant acknowledged in evidence that she had agreed to loan B.G. her car, not knowing or suspecting that his driver’s licence was suspended.

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. “

9The appellant is a registered practical nurse and single mother of two children. She provided her evidence in a clear and straightforward manner and with some emotion. She described the shock and upset she felt when she received a call to tell her that her car was being impounded. She has not seen nor had any other contact with B.G. since the impoundment, despite her efforts to reach him in the hope of recovering some of her costs arising from it.

10The appellant is employed by a mental health facility. Having a car and valid driver’s licence is a condition of employment as she is required to take her clients to medical and other appointments. In addition, as a single parent, she needs a vehicle to drive her children to daycare and school. For those reasons, after missing two work days and therefore two days wages as a result, she rented a vehicle for the duration of the impoundment. The cost of the rental has caused her substantial financial and emotional stress.

11Notwithstanding the obvious stress caused by the impoundment, the evidence is that the appellant was able to make alternate arrangements for needed transportation during the impoundment period. The tight financial circumstance in which the she lives was no doubt exacerbated by the costs to her as a result of the impoundment. However, I am not permitted to consider financial losses if there is an alternative to the suspended vehicle. I note however that the appellant has not lost her employment and was able to get some assistance from her former partner to make ends meet. In all and to her credit, she has been able to manage to mitigate the effects of the impoundment.

12For these reasons, I do not find that the appellant has established that the impoundment resulted in exceptional hardship as defined in the legislation.

ORDER:

13Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.