Date: 2018-02-07

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:

K.D.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: K.D., Appellant

For the Respondent: Steve Grootenboer, Agent Nora Challis, Agent

Heard by Teleconference: December 29, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on December 29, 2017 to consider the appellant’s appeal of the impoundment of her 2010 GMC truck (the “vehicle”) on November 22, 2017 for 45 days.

2At the beginning of the hearing, the appellant stated that she did not wish to proceed with the ground of appeal that the vehicle was stolen. The appellant confirmed that the appeal should proceed on the ground that the impoundment will result in exceptional hardship to her because she needs the vehicle for work and she cannot afford the impound fees.

3The appellant said that she wished to proceed with the hearing even though she had received but not read the Registrar’s disclosure and was offered an opportunity by the Tribunal to read the disclosure prior to the start of the hearing.

B. ISSUE:

4The issue to be determined is:

a. Will the impoundment result in exceptional hardship?

C. CONCLUSION:

5I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.

D. LAW AND ANALYSIS:

6The 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.

7An 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;

Exceptional Hardship

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. 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.

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 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.

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

11The 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).

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

12The 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?

13I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.

14The appellant said she needs the vehicle for work. The appellant works full time at a retail store and has not missed any of this work because she owns and drives a second vehicle, a 2008 Audi. She also has a part time job which she works in the evenings and on weekends. She used the vehicle to carry tools, including ladders, for this part time work. She doesn’t know how much part time work she has missed. She said that renting a truck during the impoundment period would not be worth it. Although the appellant spoke of inconvenience regarding the loss of the vehicle, this is not a factor which the Tribunal can take into consideration.

15As the appellant owns a second vehicle, she has an alternative to the impounded vehicle to get to her full time job. For the part time work, the appellant has not demonstrated that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any loss to her as required by subsection 10(4). She has decided not to rent a truck which I find would be a reasonable alternative. The appellant failed to demonstrate that renting a truck would not be a reasonable alternative. She gave no estimate of the rental cost and no estimate of the income she could earn by doing work facilitated by renting a truck. Therefore, the appellant has not shown that there is no alternative to the impounded vehicle.

16Therefore, I am unable to consider the appellant’s submission that she cannot afford the impound fees because this submission is related to financial or economic loss.

17I find that the appellant has an alternative 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:

Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.