Date: 2019-01-22

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., Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: Teleconference

January 22, 2019

REASONS FOR DECISION AND ORDER:

A. Overview:

1The appellant is the owner of a 2005 Mazda. On December 15, 2018 the appellant’s boyfriend took her car and unbeknownst to the appellant, his licence was under suspension. The appellant’s boyfriend was stopped by police 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.

4The appellant does not dispute that she did not exercise due diligence to find out the status of the driver’s licence and she assumed her boyfriend’s licence was valid. As a result, the only ground on which she appeals is that the impoundment will result in exceptional hardship.

B. ISSUES:

5Section 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:

6I 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:

7Under the HTA, where a police officer is satisfied that a person is 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 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.

8The 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.

9To 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.

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

11The applicant’s reason for appealing the impoundment is because of the inconvenience of transporting her children to and from school and their activities as well as financial losses. In order to be successful she must prove four things, including that there is no alternative to the impounded vehicle. (Section 10(1) of Regulation 631/98).

12If the appellant is unable to prove that there is no alternative to the impounded vehicle, then I do not have to consider the remaining three factors. I now turn to a consideration of whether the appellant has proved there is no alternative to the impounded vehicle.

E. ANALYSIS:

Did the appellant have an alternative to the impounded vehicle?

13It is my finding that the appellant has not suffered exceptional hardship as a result of the impoundment as set out in the legislation.

14According to the appellant, the cost of the impoundment together with the cost of paying for a rental vehicle is a financial burden that she is unable to afford, which will result in exceptional financial hardship for her and her family.

15The appellant further submits that trying to arrange transportation for her three children to drop them off and pick them up from day care for the youngest, to high-school for the middle daughter and to college for the eldest daughter is inconvenient.

16I have little doubt that the costs of the impoundment are difficult to bear as well as arranging for a rental car would also be expensive during the course of the impoundment. 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 as set out in section 10(3) of the Regulation.

17With respect to the first factor, is there is a reasonable alternative? I find that there is a reasonable alternative to the impounded vehicle available to the appellant during the period of impoundment as she has been able to rent a vehicle for a few days as needed and she also has the help from her mother and father. The appellant’s parents have been able to provide transportation to the appellant and her children during the week. On Monday, Wednesday and Friday the appellant’s father is able to drop her off at work and her children at school and pick them up in the afternoon. On Tuesday and Thursday the appellant’s mother is able to do the same. The appellant’s eldest daughter has arranged transportation to take her to Niagara College where she attends school during the week.

18I agree with the appellant that all these arrangements are inconvenient and costly however according to the Regulation, inconvenience to any person is not a factor that can be considered and a financial or economic loss cannot be considered where an alternative to the impounded vehicle is available as it is in the present case.

19As 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 the Regulation. As noted above, the appellant failed to satisfy the first ground, that there is no alternative to the impounded vehicle and as a result, it is not necessary for me to consider the remaining factors.

20I 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:

21For 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.