Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-09-11

File Number: 11513/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:

W.B.S. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: D. Gregory Flude

Appearances:

For the Appellant: D. S., Agent For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By teleconference: August 21, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on August 21, 2018 to consider the appellant’s appeal of the 45-day impoundment of his 97 GM Silverado (the “Vehicle”). The Vehicle was impounded on July 1, 2018 and was returned to the appellant upon payment of the towing and impoundment charges in and around August 15, 2018.

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

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 (“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. As the evidence unfolded, it was clear that the vehicle was not stolen, the driver’s licence was under suspension and the appellant’s son, to whom the appellant had lent the car at the time of the impoundment, had made limited enquiries about the validity of the driver’s licence. 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. The appellant has failed to clear this hurdle.

9The facts of the impoundment are not in dispute. The appellant lent the Vehicle to his son to go fishing with a friend. As the pair returned from their fishing trip they were stopped by a Ministry of Natural Resources officer and a police officer. The friend was driving at the time and the officer asked to see his licence. When the officer checked the friend’s name he discovered that the friend’s licence was under suspension. He informed the appellant’s son that the car would be impounded for 45 days.

The Exceptional Hardship

10It is the appellant and his wife who use the Vehicle on a regular basis. The appellant’s wife has serious medical issues, including stage 4 cancer and paralysis from a recent stroke. She needs the Vehicle to be taken to therapy sessions and doctor’s appointments. The appellant’s son testified that she has about two doctor’s appointments each week as well as therapy. He did not specify how often she needs to attend therapy.

11The appellant lives in a city in northern Ontario. His wife’s medical appointments appear to be ongoing follow-up and there was no suggestion that failure to make an appointment would be life-threatening. Given that the appellant and his wife live in an urban area, presumably emergency ambulance service would be available for life-threatening situations.

12To accommodate his mother’s needs the appellant’s son has taken time off work to drive from his work site about an hour away from his parent’s house, take his mother to her appointments, and drive back to work. On occasions when he has been unable to do this, he has arranged for his uncle or one of several friends to drive his mother to her appointments. Over the course of the impoundment period, the appellant’s son testified that his mother had missed one appointment with her cancer care physician. A second appointment for diagnostic imaging had to be moved to another date, not because of the impoundment but because of double booking.

13On my review of the facts I find that the appellant does not meet the first requirement, that there is no alternative to the impounded vehicle. In making this finding I do not discount the level of inconvenience suffered by the appellant’s son in driving a two hour round trip to accommodate his mother’s needs, but I do not find that this level of inconvenience constitutes exceptional hardship. Having made this finding, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER:

14Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.