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.S.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: M.S., Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by Teleconference: December 18, 2018
REASONS FOR DECISION AND ORDER
A. Overview:
1A teleconference hearing was held on December 18, 2018 to consider the appellant’s appeal of the impoundment of her 2005 Chrysler (the “vehicle”) on October 25, 2018 for 45 days. The impoundment period ended prior to the hearing and the appellant obtained the release of her vehicle on December 9, 2018.
2The appellant submits that the impoundment will resulted in exceptional hardship to her because she needed her vehicle to get to her medical appointments during the impoundment period and payment for alternate transportation and the payment of the impoundment fees to obtain the vehicle at the end of the impoundment period caused her financial hardship.
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 will result 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 needed her vehicle to get to her medical appointments during the impoundment period. She also testified that during the impoundment of her vehicle she was able to get to her medical appointments with the help of friends giving her rides and by using taxis except for one medical appointment which has been rescheduled to February, 2019. During the impoundment period she was also able to obtain groceries with the help of friends and by using taxis.
15The appellant testified that payment for alternate transportation during the impoundment period and the payment of the impoundment fees to obtain the vehicle at the end of the impoundment period caused her financial hardship. She had to pay for taxis and buy gas for friends who gave her rides during the impoundment period. The appellant said she and the driver of the vehicle at the time of impoundment live together and are both on fixed incomes. She had to borrow $1600.00 to pay the impoundment and towing fees to obtain release of her vehicle on December 9, 2018 and does not know how she is going to pay this loan back. The appellant said her exceptional hardship is financial.
16Based on the appellant’s evidence at the hearing, it is clear that the during the impoundment period, it was inconvenient for the appellant to get to her medical appointments and for her to reschedule one medical appointment for February, 2019. However this is not a factor which the Tribunal can take into consideration.
17I find that the appellant had alternatives to the impounded vehicle available to her during the impoundment period.
18I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.
19Therefore 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:
20Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: January 2, 2019