S.B. v. Registrar of Motor Vehicles, 2019 CanLII 25752

Licence Appeal Tribunal

Date: 2019-01-18

File Number: 11770/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1 of the Act

Between:

S.B. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: S.B., Appellant

For the Respondent: Sonia De Santis, Agent

Place and Date of Hearing: By Teleconference January 14, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on January 14, 2019 to consider the appellant’s appeal of the 45 day impoundment of her 2016 Ford SPE. The vehicle was impounded on December 7, 2018 and is eligible to be returned to the appellant upon payment of the towing and impoundment charges on January 21, 2019.

2The appellant appeals on the grounds of exceptional hardship.

ISSUES:

3The issue to be determined is whether the impoundment resulted in exceptional hardship to the appellant.

CONCLUSION:

4On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship as defined in section 50.2(3)(d) of the Highway Traffic Act R.S.O. c. H.8 1990, (“Act”).

EVIDENCE:

5The appellant, S.B., lives in northern Ontario in a somewhat remote smaller community with her son, her mother and an elderly great aunt. She holds two part-time jobs as a caretaker: one at a local school located across the road from her home, and one at a financial service establishment some distance away.

6At the time of its impoundment, S.B.’s vehicle was being driven by J.W., a friend of her son, who asked to borrow the vehicle for a brief errand. S.B. did not know J.W., nor that he did not have a valid Ontario driver’s licence.

7Although S.D.’s son had a vehicle, at the time of the impoundment it was not suitable to be driven due to mechanical problems. He had been planning to use S.D.’s vehicle to visit someone in a nearby community when J.W. asked to borrow the vehicle.

8In the Notice of Appeal and in her oral testimony at the hearing, S.B. noted the importance of her vehicle to herself and other members of her family. At the time of the impoundment, her mother had given notice to her landlord and planned to move in with S.B. In addition, S.B. was anticipating an immediate need to drive her mother to a larger community five hours away for knee surgery. Apart from these urgencies, S.B. has regularly relied on the impounded vehicle to get to work, for errands, for access to social and recreational activities, and for her own medical appointments.

LAW AND ANALYSIS:

9The owner of a vehicle that has been impounded may appeal the impoundment pursuant to the Highway Traffic Act, R.S.O.1990, c H.8, s.50.2.

10The grounds for appeal are set out in s. 50.2(3) of the Act:

(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.

In this case, the only ground relied upon is exceptional hardship.

11Section 10.(1) of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship has resulted from an impoundment. The burden of proving such hardship rests on the appellant.

12The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle.

13At the appeal, S.B. testified that during the period of impoundment, alternate transportation arrangements had been made for her mother’s move. She acknowledged with candor that although it is inconvenient, she has also been able to make alternate arrangements to get to her places of employment. She has called upon friends and neighbors on occasion and in other instances she has walked to work and back home. She also testified that while each of her mother’s and her son’s vehicles had mechanical problems, they are driveable and if needed can be used for necessary transportation.

14For these reasons, I find that the appellant has not established that the impoundment resulted in exceptional hardship.

ORDER:

15Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment.