Date: 2018-11-02

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:

D.C.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: D.C., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and Date(s) of Hearing: By Teleconference

October 26, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1A hearing was held on October 26, 2018, by teleconference, to consider the appeal of the appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The appellant’s vehicle was impounded on September 24, 2018. The appellant let her son use her vehicle to visit his children who live in another city. Due to circumstances that remain unclear, a person who was associated with the appellant’s son drove the vehicle. The driver, C.M., has several convictions for his failure or refusal to provide breath or blood samples, and as a result his driving privilege has been suspended.

3The vehicle was stopped by the police. After determining the driver was driving without a licence, the officer proceeded to issue a notice to impound the vehicle pursuant to the Act.

4The appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. The appellant lives with her husband. The appellant has retired and lives on a very modest pension income. The appellant’s husband works part-time as a taxi driver to augment their family income.

5While the impoundment of the vehicle has caused financial hardship and tremendous emotional stress, the appellant does have an alternative to the impounded vehicle. Accordingly, I confirm the impoundment.

B. ISSUES:

6The issue under the appeal are as follow:

Will the impoundment result in exceptional hardship?

C. EVIDENCE:

7Both the appellant and her husband, who are in their 70s, gave evidence at the hearing. The appellant and her husband live in a condominium apartment unit, which carries a first and a second mortgage. Apart from the impounded vehicle, the appellant and her husband own two other vehicles, one of which her husband uses to go to work.

8The appellant explains that she and her husband bought the impounded vehicle a couple of years ago in part so that their son, who lives in a nearby city, could use the vehicle to go visit his children who live in another city with their mother.

9Although she gave permission to her son to use the vehicle, the appellant emphasizes that she never gave permission for her son to let anyone else drive the vehicle. The appellant speculates that the driver, C.M., either took the vehicle without her son’s knowledge or manipulated her son into letting him use the vehicle.

10The appellant’s key concern is about the cost she has to pay to recover the impounded vehicle. The appellant submits 2017 income tax information showing her income was about $13,000 and her husband’s income was just over $42,000. They have two mortgages on their condominium unit and a myriad of other expenses. The appellant submits that the $4,500 or so that she needs to retrieve the impounded vehicle will impose a significant financial hardship on her and her husband.

11The appellant has no way of recuperating the cost from the driver, C.M., who is nowhere to be found. The appellant also cannot rely on her children to help. The appellant’s son works on and off as a roofer and has an addiction issue. The appellant’s daughter has a learning disability and is not in a position to provide assistance.

12Both the Appellant and her husband submit that they are the victims in this case, as they never gave permission to C.M. to drive their vehicle and did not find out about the impoundment until they received the notice in the mail.

D. LAW:

13Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. 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 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.

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 will result from an impoundment. In order to establish exceptional hardship, 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 shall consider, under s. 10(1), whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by 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 described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

a. financial or economic loss to any person;

b. loss of employment or employment opportunity to any person; or

c. 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 of 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, and

(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) 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:

21There is no question that the impoundment has affected the appellant and her husband both financially and emotionally. The appellant talks about the stress that the impoundment has put her under, and the emotional impact is evident throughout the hearing as well.

22I am sympathetic to the fact that the appellant did not give permission to C.M. to operate her vehicle. I acknowledge that still, to this date the appellant does not know the circumstances that led to the impoundment of her vehicle. However, the law is clear. When a police officer is satisfied that a person is driving while suspended, the officer is required to detain and impound the vehicle. As noted by the respondent, this provision is meant to protect public safety.

23While I appreciate that the appellant and her husband have limited means to pay for the cost associated with the impoundment, the fact that the appellant and her husband each have another vehicle at their disposal confirms there is an alternative to the impounded vehicle available. I note that neither the appellant nor her husband talked about the impact of the loss of vehicle at the hearing. I further note that the appellant’s husband has also been able to continue his work as a part-time driver, without having to suffer any income loss, however modest that income may be.

24Given that there is an alternative to the impounded vehicle available, the appellant therefore has not established that she will suffer exceptional hardship as the term is defined under the Act, and on that basis I also cannot consider the financial loss that may follow as a result of the impoundment.

ORDER:

25For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.