Date: 2018-03-26

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:

M.B.

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Sandeep Johal, Member

Appearances:

For the Appellant: M.B.

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: Teleconference

January 26, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant is the owner of a 2010 Dodge. The appellant’s boyfriend took her car keys while she slept. He was stopped by police at a R.I.D.E. spot check and was charged under the Highway Traffic Act (“HTA”) with driving while under suspension and the appellant’s vehicle was impounded for 45 days.

2The appellant appealed the impoundment to this Tribunal on the basis that the impoundment will result in exceptional hardship and the appellant asks that the Tribunal order the Registrar to release her vehicle.

3I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and its regulations. In determining whether exceptional hardship will result from an impoundment, regulations under the HTA prohibit me from considering inconvenience.

B. ISSUES:

4Section 50.2 of the HTA provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section also sets out the only permissible grounds upon which an appeal can be based. The appellant’s appeal is based on the following ground:

a. “that the impoundment will result in exceptional hardship.”

C. RESULT:

5I find that the appellant has not proven the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

D. LAW:

6Under the HTA, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.

7Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle, 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.

8Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. 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 impoundment period.

9If 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 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.

10In 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.

11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

12The financial, employment and educational losses may only be considered if of the criteria 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).

13To summarise, the Tribunal may allow this appeal and order the Registrar to release the vehicle if the Tribunal is satisfied that the impoundment will result in exceptional hardship.

E. ANALYSIS:

Did the appellant suffer exceptional hardship?

14It is my finding that the appellant has not suffered exceptional hardship as a result of the impoundment as set out in the legislation.

15According to the appellant, she is unable to afford to pay for the vehicle and the impound fees.

16I have little doubt that the costs of the impoundment are difficult to bear. However, in determining whether exceptional hardship will result from an impoundment, Regulation 631/98 states that the Tribunal shall not consider financial or economic loss unless the owner can demonstrate all four of the factors noted above in paragraphs 10 and 11.

17With respect to the first factor, I find that there is a reasonable alternative to the impounded vehicle available to the appellant during the period of impoundment and she has been able to obtain help by borrowing her mother’s car or relying on friends. The appellant stated that she had to cancel doctor’s appointments for herself as she is currently pregnant, however those appointments were rescheduled and she was able to attend those appointments with the assistance of her mother’s vehicle or her friend’s vehicles. It may be rather inconvenient, however according to the Regulation, inconvenience to any person is not a factor that can be considered.

18As mentioned, in order for me to conclude that the impoundment will result in exceptional hardship due to financial or economic losses, the appellant must demonstrate all four of the factors listed in s.10(3) of Regulation 631/98. As noted above, the appellant failed to satisfy the first ground, whether there is no alternative to the impounded vehicle and as a result, it is not necessary for me to consider the remaining factors.

19I conclude that the impoundment will not result in exceptional hardship as set out under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

20For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, 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.