A.S. v. Registrar of Motor Vehicles, 2018 CanLII 126556

Date: 2018-11-07

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:

A.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Cezary Paluch, Member

Appearances:

For the Appellant: A.S., Self-Represented

For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: By Teleconference October 22, 2018

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on October 22, 2018 to consider the appellant’s appeal of the impoundment of her 1997 Chevrolet Astro van (the “vehicle”) on September 13, 2018 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to work and to pick up her children.

3I 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.

4While the impoundment of the appellant’s car has caused stress, inconvenience and financial strain for the appellant, the appellant indicated that she has the use of a friend’s vehicle in order to attend work and transport her children. Accordingly, I confirm the impoundment.

B. ISSUE

5The 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

6Under 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.

7Subsection 50.2(3) of the Act 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 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.

8Section 10 of O. Reg.631/98 (the “Regulation”) is very specific and 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. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement

9Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

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

12In 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 including using another vehicle during the impoundment period. Section 10(4) of the Regulation requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound 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(3) of the Regulation.

13The appellant lives in [ … ] and testified that she works in [ … ], Ontario, which is 45 minutes away from her home, and requires her vehicle to get to work. She also stated that she requires her vehicle to pick up her children every other weekend from [ … ] which is 25 minutes away. She does not own a second vehicle. There appears to be no bus service available for her. However, the appellant also stated that during the impoundment period she has borrowed a friend’s vehicle to get to work and pick up her kids and explained that she if she did not borrow this vehicle she would lose her job. As a result, it is clear that the appellant does not require the impounded vehicle to get to work or pick up her children as she has the use of a friend’s car and is essentially currently able to carry out her every day duties and routines.

14Although I accept that the impoundment has caused her inconvenience, this is not a factor which the Tribunal can take into consideration. There is an alternative to the impounded vehicle, and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the HTA has not been met.

15The appellant provided no documentary evidence related to financial or economic loss or how the impoundment resulted in a threat to her health or safety.

16I find that the appellant has alternatives to the impounded vehicle available to her. Therefore I find 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.

17In conclusion, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been met.

E. CONCLUSION:

18For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle for the remainder of the impoundment period.