T.M. v. Registrar of Motor Vehicles, 2018 CanLII 126546

Court File and Parties

Date: 2018-11-07 File Number: 11543/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:

T.M. Appellant

and

Registrar of Motor Vehicles Respondent

Decision and Order

Panel: D. Gregory Flude

Appearances:

For the Appellant: T.M., Self-Represented For the Respondent: Sonia De Santis, Agent

Place and date of hearing: By Teleconference: September 17, 2018

Reasons for Decision and Order

Overview:

1A teleconference hearing was held on September 17, 2018 to consider the appellant’s appeal of the 45-day impoundment of her 2014 Dodge Journey (the “Vehicle”). The Vehicle was impounded on August 6, 2018.

2The appellant submits that the impoundment of the Vehicle resulted in exceptional hardship.

Issue:

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 there was an alternative to the impounded vehicle such 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.

7While it is not an appeal requirement that an appellant specify which of the above grounds the appeal is based on, in this case the appellant circled the exceptional hardship provision on the Notice of Appeal form. As the evidence unfolded, it was clear that the vehicle was not stolen, the driver’s licence was under suspension and the appellant had assumed that the driver’s licence had been reinstated after a suspension without taking any steps to verify that fact. Thus, the hearing focused on the exceptional hardship provision.

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. In this matter, the appellant rented a replacement vehicle during the impoundment. I note that the impact of the cost of replacement has worked a hardship on the appellant such that she is likely to lose an academic year, but, during the impoundment period the appellant had an alternative rented vehicle available to her.

9The facts of the impoundment are not in dispute. The appellant’s husband was driving the Vehicle. The police stopped the Vehicle and determined that the driver’s licence was under suspension for failure to take a retraining course. The police informed the appellant that the car would be impounded for 45 days.

The Exceptional Hardship

10The appellant uses the Vehicle to drive her husband and herself to work, to drop the children off at school and pick them up. Given the particular logistics of her situation and work shifts, she could not manage without a car so she rented a car for the period of the impoundment. In making the decision to rent the car, the appellant found herself faced with a dilemma: the cost of renting a replacement vehicle placed such a heavy burden on her that she might have to abandon her educational plans to start a yearlong training course to qualify as a personal service worker. While she had already paid the fees for the course, the loss of income while attending college might be unmanageable for the family. The appellant would have to forego the course and lose some or all of the college fees.

11The difficulty the appellant faces in proving exceptional hardship is the fact that she made arrangements for other transportation. Section 10 of the Regulation refers to the need for no alternative to the impounded vehicle three times. It acts as a threshold.

12On my review of the facts I find that the appellant has not shown that she falls within the section of the regulations where I can consider exceptional hardship because of the existence of alternative transport.

Order:

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