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:
J.D.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and Date of Hearing: Teleconference Hearing
December 21, 2018
REASONS FOR DECISION AND ORDER
Overview
1The appellant is the owner of a 1990 Cadillac motor vehicle. She states that she dropped her car off at an auto repair shop where her son, S.D., works to have her car winterized and snow tires installed.
2S.D.’s driver’s licence is under suspension. He had access to his mother’s car while it was in the shop and, on November 19, 2018, he was caught by the police driving his mother’s car while under suspension. The appellant’s car was impounded for 45 days.
3The appellant appeals the impoundment on the single ground that the impoundment will result in exceptional hardship.
ISSUE
4Should the Registrar be ordered to release the appellant’s vehicle on the ground that the impoundment will result in exceptional hardship to the appellant?
DECISION
5The appellant states that that the impoundment will cause her financial or economic loss which, in her financial circumstances, will result in exceptional hardship.
6By regulation, the Tribunal may only consider financial or economic loss as exceptional hardship if the owner demonstrates (among other things) that there is no available alternative to the impounded vehicle. In this case the appellant has an available alternative – she owns and operates a second vehicle.
7Since financial or economic loss may not be considered as exceptional hardship where the appellant has an alternative to the impounded vehicle, the appeal must fail and the impoundment is confirmed.
THE LAW
8Under the Highway Traffic Act (“HTA”), a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose driver’s licence has been suspended (HTA, s.55.1).
9The owner may appeal the impoundment to this Tribunal. On appeal, the Tribunal may confirm the impoundment or order the Registrar to release the vehicle (HTA, s. 50.2(1)).
10There are only four grounds on which an owner may appeal an impoundment. One of those grounds is “that the impoundment will result in exceptional hardship” (HTA, s. 50.2(3)). That is the appellant’s single ground for appeal in this case.
11Ontario Regulation 631/98, a regulation made under the HTA, sets out the criteria that the Tribunal may consider, and others that the Tribunal may not consider in determining whether an impoundment will result in exceptional hardship.
12According to that regulation, in determining whether exceptional results from an impoundment, the Tribunal shall not consider whether the impoundment results “in financial or economic loss to any person” unless the owner demonstrates that (among other things), “no alternative to the impounded vehicle is available” (Ontario Regulation 631/98, s.10).
(i) Impact of the Impoundment
13The appellant testified that her 1990 Cadillac was impounded on November 11, 2018 for 45 days when the police discovered it being driven by her son, a suspended driver.
14The appellant testified that she is a retired widow and lives by herself in a rural area with no public transportation.
15The appellant testified that the Cadillac is one of two cars she owns. She also owns a 2014 Toyota Venza. Both cars are currently plated, insured and are roadworthy.
16However, the appellant stated that she is currently experiencing financial pressure. She hoped to sell the Venza in December, 2018 and use the proceeds of sale to reduce her debt load. She was attempting to avoid driving the Venza to keep the mileage low and attract a higher sale price.
17Since the Cadillac is now impounded and unavailable, she has had to drive the Venza and increase its mileage which will reduce the car’s value. According to the appellant, the impoundment of the Cadillac is causing her financial hardship in that she must use the Venza, thereby reducing its sale value and reducing her ability to ease her financial pressures.
(ii) Has Exceptional Hardship been Demonstrated?
18The appellant states that the impoundment will result in exceptional hardship because it will cause her financial or economic loss. Without the Cadillac she must use the Venza and increase its mileage thereby reducing its potential sale value and causing her a financial or economic loss.
19However, Ontario Regulation 631/98 prohibits the Tribunal from considering financial or economic loss in determining whether exceptional hardship exists unless the appellant demonstrates that there is no available alternative to the impounded vehicle.
20In this case the appellant has an alternative to the impounded Cadillac - she owns and operates a second vehicle.
21I am therefore precluded in this case from considering financial or economic loss resulting from the impoundment as exceptional hardship.
22Accordingly, I conclude that the appellant has not established that the impoundment will result in exceptional hardship.
ORDER
23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: January 3, 2019