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.N.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: D.N., Self-represented
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: May 22, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on May 22, 2018 to consider the appellant’s appeal of the impoundment of her 2013 Audi (the “vehicle”) on April 21, 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 care for her father.
B. ISSUE:
3The issue to be determined is whether the impoundment will result in exceptional hardship.
C. CONCLUSION:
4I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which 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;
7The appellant seeks to have her vehicle released on the basis that the impoundment will result in exceptional hardship.
Will the impoundment result in exceptional hardship?
8I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.
9Section 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, 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.
10If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider 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.
11In limited circumstances described below, I 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.
12The 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).
13Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
14The appellant testified that she needs the vehicle to get to work and to care for her father. Five days a week she drives to her work in another municipality. Since the impoundment of her vehicle she has not had to miss any work due to loss of the vehicle because she has been able to get a ride to work from a friend and also has taken public transit. As a result, the appellant does not require the impounded vehicle to get to work.
15The appellant’s father lives by himself in a senior home in a large urban centre. Meals are provided sometimes at the senior home but her father mostly fends for himself. She visits her father multiple times a week and gets his groceries and cleans for him. The appellant’s father has been able to remain in the senior home since the impoundment. Her father has not missed any medical appointments because of the impoundment. There is a doctor who comes to her father’s building once a week and 911 emergency services are available to her father.
16Although the impoundment has caused inconvenience to the appellant in getting to her work and in caring for her father, this is not a factor which the Tribunal can take into consideration.
17The appellant made no submissions related to financial or economic loss.
18I find that the appellant has alternatives to the impounded vehicle available to her. Therefore I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Released: May 29, 2018
____________________________
Avril A. Farlam, Vice-Chair