I.M. v. Registrar of Motor Vehicles, 2019 CanLII 25742

I.M. v. Registrar of Motor Vehicles

Date: 2019-01-16

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:

I.M. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Cezary Paluch, Member

Appearances: For the Appellant: I.M., Self-Represented For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By teleconference November 29, 2018

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on November 29, 2018 to consider the appellant’s appeal of the impoundment of her 2007 Hyundai Santa Fe (the “vehicle”) on October 9, 2018 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to drive her children to school, her husband to work and then for her own work-related activities.

3I 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.

4While the impoundment of the appellant’s car has caused stress and inconvenience for the appellant, the appellant has a second vehicle registered in her name which she has been using in order to attend work and transport her children and husband. Accordingly, I confirm the impoundment.

B. ISSUE

5The 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.¹

C. LAW

6Under 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 impoundment period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 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.

8Section 10 of O. Reg.631/98 (the “Regulation”) is very specific and 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. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.

9Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

10The 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.

11Following 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

12In 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, including using another vehicle during the impoundment period. Section 10(4) of the Regulation requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any 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.

13The appellant lives in Burlington, Ontario with her husband and 3 daughters. She testified that she has had the use of her oldest daughter’s car during the impound period. The daughter lives with the appellant and her husband. The appellant confirmed that the daughter’s car is registered in her name. The respondent provided a Ministry of Transportation record confirming that a Honda CRV with plate CAVB77 is registered in the name of the appellant.

14The appellant testified that she has to wake up very early in the morning to drive her husband to work and also her daughter to her school in Mississauga using her daughter’s car. She then returns to Burlington to attend to her employment as a personal support worker. Her job requires her to travel across the Burlington region to meet with clients. As a result, sometimes she is late and her clients have to wait for her. This has been stressful for her. She has also been inconvenienced by having to pay for a taxi to take her other daughter to school as there is no other car available to drive her. She stated the cost of an Uber taxi is $20 per week.

15It is clear that the appellant does not require the impounded vehicle for work purposes, or to drive her husband and daughter to school as she has the use of another car that she describes as her daughter’s car but which is registered in her name, and she is essentially currently able to carry out her every day duties and routines.

16Although I accept that the impoundment has caused her inconvenience, this is not a factor which the Tribunal can take into consideration. There is an alternative to the impounded vehicle, namely the second family vehicle, and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the HTA has not been met.

17The appellant provided no documentary evidence related to financial or economic loss or how the impoundment resulted in a threat to her health or safety.

18I find that the appellant has alternatives to the impounded vehicle available to her. Therefore I find the appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

19In conclusion, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been met.

E. CONCLUSION:

20For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle for the impounded period.

Footnotes

1. 1The Applicant at the hearing confirmed that she is not pursuing the ground that the vehicle was stolen at the time it was impounded despite reference to this ground in the Notice of Appeal.