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:
W.B.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Asad Ali Moten
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard via Teleconference: October 18, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1W.B. appeals the impoundment of his 2009 Kia (the vehicle). In June 2018, W.B. was convicted of dangerous driving. As a result, his licence was suspended. In September 2018, on his way to a construction site for work, W.B. was involved in a motor vehicle collision. He told police at the scene that he had been driving his Kia, and the police, noting the driving suspension, impounded the vehicle.
2The appeal is made on the basis that the impoundment of the vehicle has caused, and will cause, W.B. exceptional hardship. He argued that he is in dire financial straits and cannot afford the impoundment fee. This would be in addition to the cost of repairing the vehicle, which, he argues, outstrips the current value of the vehicle.
3After considering all of the evidence provided, and based on the reasons below, the Tribunal confirms the impoundment.
B. ISSUES
4The issue to be determined is whether the impoundment of W.B.’s vehicle has caused W.B. exceptional hardship.
C. EVIDENCE
5The evidence in this matter is uncontroverted.
6W.B. owns the 2009 Kia. He testified that he paid $8,000 for it.
7In August of 2017, W.B. committed an act of dangerous driving. He was convicted of this offence on June 13, 2018. One of the conditions of his conviction was that he was suspended from driving until June 13, 2019.
8On September 6, 2018, the appellant was working for a carpentry company at a construction site located a five minute walk from him home. While there, the construction team received word that there were materials that had been delivered to a different construction site in London that needed to be picked up. The construction team did not have a vehicle available to them to make the pickup.
9W.B. decided to walk to his house and get the vehicle. He intended to drive the vehicle to the other construction site and pick up the materials. He picked up a colleague and together they drove towards the London construction site. It is of note that W.B. testified that this was the only time since his suspension that he has driven the vehicle. There was no contrary evidence to this point.
10On the way, while driving along Commissioners Road, W.B. was tailing a truck. The truck suddenly switched lanes and revealed another car that had been in front of the truck. W.B. tried to swerve to avoid hitting the other car but was unsuccessful. The vehicles collided, and W.B.’s vehicle suffered significant damage – he estimates it to be approximately $3,000 – and the vehicle was no longer in driving condition.
11W.B.’s colleague took a taxi to the London construction site. When police arrived, W.B. was alone with the vehicle. He admitted to the police that he had been driving.
12W.B. was arrested for driving while disqualified, and the vehicle was impounded. The police drove W.B. to the police station and released him approximately an hour later. He then walked to the house of a friend who drove him home.
13Since that day, W.B. has been laid off and has not worked. He testified that carpentry jobs have not been available. W.B. testified that he cannot afford the release fee of approximately $2,700. His other bills are piling up, including credit card and utility bills. He is currently awaiting Employment Insurance, and has to pay for further carpentry schooling and lawyer’s fees for his criminal charges of driving while suspended. This episode and the associate financial struggles have affected his relationship with his girlfriend.
D. LAW, Evidence AND ANALYSIS
14The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Pursuant to s.55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.
15An owner whose vehicle has been impounded can appeal to the Tribunal to have the Registrar release the vehicle, on the basis of any of the grounds listed in s. 50.2 of the HTA. Appellants have the onus to establish that any of the grounds in s.50.2 have been met. In this instance, W.B. appealed to the Tribunal based on s. 50.2(3)(d), which states:
s.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.
16Section 10 of O. Reg. 631/98 (the Regulation) provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation, the Tribunal may only consider financial or economic loss, loss of employment or employment opportunity, or loss of a training opportunity if the owner of the vehicle can demonstrate that:
a. There is no alternative to the impounded motor vehicle available;
b. The loss of the vehicle 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 will be on someone other than the suspended driver whose driving resulted in the impoundment, and the loss is not suffered by the suspended driver.
17Inconvenience to any person is not exceptional hardship.
18In this instance, it was clear to the Tribunal that W.B. was remorseful for what transpired. He apologized for his actions. The Tribunal, however, does not have the jurisdiction to deviate from the statutory test and consider expressions of remorse, no matter how sincere.
19Based on the evidence presented I find that:
W.B. was the one driving the vehicle while a suspended driver, thus resulting in the impoundment;
W.B. is ordinarily transported by the vehicle, in other words, he would be the daily user of the car; and,
W.B. is also the person who has suffered a loss as a result of the vehicle’s impoundment. There was no evidence before me to suggest that anyone else has suffered a loss of the kind described above.
20Applying section 10 of the Regulation to the findings above, I find that W.B. has not satisfied his onus to prove to the Tribunal that the impact of the loss of the vehicle will be suffered by someone other than him, the suspended driver. Although W.B. described the impact that the impoundment was having on his relationship with his girlfriend, there was no evidence to suggest that she had suffered a financial or economic loss, loss of employment, or loss of training as a result of the impoundment.
21As that part of the statutory test was not met, I find it unnecessary to consider any of the other parts of the test described above.
ORDER:
22After considering the evidence, the Tribunal confirms the impoundment of W.B.’s vehicle for 45 days.
LICENCE APPEAL TRIBUNAL
___________________________
Asad Ali Moten, Member
Released: November 13, 2018