Date: 2018-09-14

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:

B.C.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: B.C., Self-Represented

For the Respondent: Steve Grootenboer, Agent

Place and Date(s) of Hearing: Teleconference August 30, 2018

REASONS FOR DECISION

A. Overview

1The appellant is a 62-year-old woman who recently, following a lengthy and difficult divorce, relocated to a small community about two hours north of Toronto. Her son and a daughter, both adults, reside elsewhere. On the day in question, the appellant had travelled to a nearby larger centre with her daughter in her daughter’s car. She was not expecting a visit from her son that day.

2While the appellant was out with her daughter, her son arrived at the appellant’s home, gained access, and took the appellant’s car without permission to drive to Toronto. The appellant’s son was stopped by a police officer who determined that the son’s driver’s licence was suspended as a result of a conviction for impaired driving. As a result, the police officer detained the appellant’s car and directed that it be removed to an impound facility for 45 days.

3The appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. She submits that she lives in a rural area unserved by public transportation or taxis and that she cannot afford the cost of the rental vehicle that she has been using to get to work. She is asking the Tribunal to order the Registrar to release her vehicle.

4I 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.

5While the impoundment of the appellant’s car has caused stress, inconvenience and increased costs for the appellant, the appellant has not demonstrated that there is no alternative to the impounded vehicle, as she has successfully rented a vehicle that she has been using to travel to work. Accordingly, I confirm the impoundment.

B. ISSUE

6The 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.

7The circumstances described by the appellant may fall within the ground of appeal in paragraph (a) of s. 50.2(3), which provides relief if the impounded motor vehicle was stolen at the time it was detained for impoundment. This was explained to the appellant. Also explained was that the meaning of “stolen” in this context is different than how it would be interpreted for criminal law purposes. The appellant was adamant that she did not wish to pursue the “stolen” ground of appeal.

C. LAW

8Under 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 impound period is 45 days if there has been no previous impoundment in the last two years.

9Subsection 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.

10Section 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.

11The 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.

12Following 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

13The appellant testified about the circumstances which led to her son gaining access to her home and taking her vehicle. This evidence is not relevant to the ground that the appellant wishes to pursue, namely, that the impoundment is causing exceptional hardship.

14The appellant also testified about the difficult circumstances she has encountered over the past several years including several serious medical conditions, a violent domestic situation, an acrimonious divorce and a move to a new community to rebuild her life. She indicated that the divorce settlement left her with a sufficient amount of money to buy a house outside Toronto and to put away a small nest-egg for her retirement.

15In 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 that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor 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. The appellant submits that the impoundment has resulted in a financial loss which she is unable to afford.

16The appellant indicated that she had rented a car in order to attend her work during the period that her vehicle is impounded. Her job is a part-time, minimum wage job and she stated that the rental vehicle costs more on a weekly basis than her wages earned in a week.

17I understand that as a result of the impoundment, the appellant is required to spend more money than she feels she can afford to rent the vehicle. Although this is certainly an extra burden on the appellant, her use of a rental vehicle is a reasonable option and within the appellant’s financial means. As the appellant has been able to rent a vehicle to attend her job, I find that the appellant’s current arrangement is an alternative to the impounded vehicle within the meaning of s. 10 of the Regulation. In consequence, 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. The vehicle will remain at the impound facility for the remainder of the impoundment period.