H.S. v. Registrar of Motor Vehicles, 2019 CanLII 29100

Date: 2019-02-14

File Number: 11829/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(3) of the Act

Between:

H.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: H.S., Appellant

For the Respondent: Stella Velocci, Agent

HEARD by teleconference on: February 7, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on February 7, 2019 to consider the appellant’s appeal of the 45 day impoundment of his 2013 V.W. Passat. The vehicle was impounded on January 4, 2019 and is eligible to be returned to the appellant upon payment of the towing and impoundment charges on February 18, 2019.

2The appellant appeals on the grounds of exceptional hardship.

ISSUES

3The issue to be determined is whether the impoundment has 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, H.S. is a highly articulate and obviously intelligent young man. He lives in a suburban community in the greater Toronto region with his sister and her four children. He is in Canada as an international student, having lived here for approximately 18 months. He attends a college in a nearby community and is enrolled in a business and marketing program from which he plans to graduate in spring, 2019. He is also a certified chemical engineer in his country of origin. In addition to his studies, he has a part time sales job with a coffee company, which the job requires him to travel among several outlets throughout the region. The job is his only source of income and he is limited to working 20 hours per week under the terms of his student visa. He usually works Friday, Saturday and Sunday and is paid on an hourly basis.

6At the time of its impoundment, H.S.’s vehicle was being driven in downtown Toronto by a friend, R.R., who was stopped because he was holding a cellular device while driving. H.S. allowed R.R. the use of the car as a birthday gift, not knowing that R.R.’s driving licence had been suspended. This act of generosity has had unfortunate consequences.

7In his Notice of Appeal and oral testimony, H.S. emphasized the importance of having the use of his vehicle. He needs it to get to college and to his job assignments, but in addition, he testified as to his responsibility to his sister and her children. His sister is also an immigrant who is currently enrolled in English and other courses and is hoping to become a permanent resident in Canada. She is a single mother and the father of her children does not reside in Canada. Her financial support comes from family in their home country, but the family is not supporting H.S.

5The sister’s children range in age from three to fourteen. In exchange for free room and board in his sister’s rental home, H.S. takes the major responsibility for taking the children to school and picking them up. He also does other errands such as grocery shopping. Although there is public transportation in the area, bus routing is difficult, both in terms of delivery and pick up of the children, and attendance at college and work.

6During the period of impoundment, H.S.’s sister has had to miss some of her classes to assist with the delivery and pick up her children. H.S. has continued to do what he can to help, by renting a car for some period of time and using ride services, as well as taking public transportation when possible. The children go to 3 different schools appropriate to their age range. H.S.’s work assignments sometimes take him to more than one venue per day which puts strain on his ability to do his job although he does not claim that he has missed either school or work shifts. The impoundment of his car has caused an unexpected and unwelcome expense, and has also caused him substantial emotional distress.

LAW AND ANALYSIS

7The 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.

8The 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.

9Section 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.

10The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle.

11H.S. testified as to the various alternatives he has relied on to fulfill all of his obligations during the impoundment. Despite the financial and emotional stress, it is clear that he and his family have managed in the difficult circumstances in which they find themselves. H.S. continues with his studies and to do regular work shifts with his employer, earning income. The children are able to continue with their schooling and there was no evidence given that their mother was not continuing with hers, albeit with a few missed classes. No medical appointments have been missed. No evidence was given of a significant or lasting loss.

12For these reasons, I do not find that the impoundment has resulted in exceptional hardship.

ORDER

13Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment.