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(3) of the Act for driving while suspended.
Between:
J.H.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: J.H., Self-represented
For the Respondent: Sonia De Santis, Agent
HEARD by teleconference on: February 13, 2019
OVERVIEW
1The appellant is the owner of a 2016 Honda Odyssey motor vehicle (“Odyssey”).
2On December 23, 2018, the Odyssey was impounded by the police for 45 days after it was discovered being driven by a person whose licence was under suspension.
3The appellant appeals the impoundment on the single ground that it has resulted in exceptional hardship in two ways. Firstly, the temporary loss of his vehicle has prevented the appellant and his family from attending activities and appointments, including medical appointments. Secondly, the impoundment has caused a significant financial loss which, given his modest financial circumstances, amounts to exceptional hardship.
4Section 50.2 of Highway Traffic Act provides that on an appeal the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
5In this case, the 45-day impoundment period expired on February 5, 2019 and the appellant’s vehicle was released after he paid the towing and impoundment costs of $3,051.
6Although the vehicle was released before this appeal was held, the appellant requests that the Tribunal proceed to consider the appeal and order the Registrar to release the vehicle
7As the Registrar’s agent confirmed at the appeal hearing, although the vehicle has already been released, the practical effect of such an order is that the Registrar would reimburse the towing and impound charges paid by the appellant to recover his vehicle.
ISSUE
8Should the Tribunal order the Registrar to release the appellant’s vehicle on the ground that the impoundment has resulted in exceptional hardship?
DECISION
9The impoundment is confirmed. Although the impoundment has caused significant inconvenience to the appellant and his family, it has not resulted in exceptional hardship.
THE LAW
10Under the 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).
11The owner may appeal the impoundment to this Tribunal.
12There are only four grounds on which an owner may appeal. 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.
13Ontario Regulation 631/98, a regulation made under the HTA (“regulation”), sets out criteria that the Tribunal may consider, and others that the Tribunal may not consider, in determining whether an impoundment will result in exceptional hardship.
14According to the regulation, the Tribunal shall consider;
“…whether no alternative to the impounded vehicle is available, and if no alternative is available whether the impoundment will result in …a threat to the health and safety of a person ordinarily transported by the …vehicle” (regulation, s.10(1)).
15According to the regulation, the Tribunal shall not consider inconvenience to any person (regulation, s.10 (2)(a)).
16In addition, the Tribunal may only consider financial or economic loss as exceptional hardship if the owner demonstrates (among other things) that “no alternative to the impounded vehicle is available” (regulation, s. 10(3)(a)).
THE IMPOUNDMENT
(i) Impact of the Impoundment
17The appellant testified that the impoundment resulted in exceptional hardship in two ways.
18Firstly, the impounded vehicle is the principal family vehicle for his family of six. The loss of that vehicle reduced the family’s ability to attend doctor’s appointments and children’s activities and obtain groceries and household supplies.
19Secondly, the appellant suffered a financial loss which, in his financial circumstances, has caused exceptional hardship to him and his family. That loss is $3,051 - the towing and impoundment costs that the appellant had to pay to retrieve his vehicle from impoundment.
20With respect to the loss of the family vehicle, the appellant testified that he lives with his spouse and 4 children on the Beausoleil First Nation reserve located on Christian Island, Ontario. Access to goods and services on the island is limited and it is necessary to visit the mainland frequently for doctor and other appointments, get the children to their activities, and obtain household supplies.
21To access the mainland, the appellant relies on a ferry service between Christian Island and Midland, Ontario. That ferry service can accommodate passenger vehicles.
22However, the ferry does not operate during the winter months because of ice. In winter the ferry is replaced by an icebreaker that can transport passengers but not their vehicles.
23For that reason, the appellant maintains two vehicles – the Odyssey which he keeps parked during winter months on the mainland in Midland, and a GMC pick-up truck for use on the island. It was the appellant’s mainland vehicle - the Odyssey - that was impounded on December 23, 2018, for 45 days.
24As a result, the appellant and his family lost access to their mainland vehicle. According to the appellant that impacted his family in the following ways:
The appellant’s spouse is pregnant and sees a doctor regularly who is located on the mainland in Orillia, Ontario. During the 45-day impoundment the appellant’s spouse had to cancel two doctor’s appointments because their mainland car was unavailable and alternate arrangements could not be made.
Two of the appellant’s children play organised hockey. One of them is in a rep league that requires several practices and games each week. Some of those games and practices were missed because mainland transportation was unavailable.
The appellant must go to the mainland frequently to purchase groceries and supplies for a family of six. The lack of a mainland vehicle made it very difficult to obtain necessary groceries and supplies.
25The appellant testified that he was sometimes able to get assistance with transportation from friends or family who live on the mainland or keep vehicles there. He sometimes obtained groceries by imposing on a relative in Midland to purchase groceries and meet him at the boat terminal where he would pick them up.
26Although the appellant’s spouse missed two doctor’s appointments, there was no suggestion that her health was placed at risk and the appellant testified that the children did not miss any medical appointments as a result of the impoundment.
27With respect to financial losses resulting from the impoundment, the appellant testified that he lost the amount required to retrieve his car from impoundment. The appellant testified that $3,051 is a lot of money for him and, given his family responsibilities and limited income, that loss has caused exceptional hardship.
28The appellant testified that he works seasonally, is currently unemployed, and expects to return to work around May 1. He currently receives EI benefits and, other than child benefits that is the sole source of his family’s income.
(ii) Has Exceptional Hardship been demonstrated?
29I conclude that the appellant has not demonstrated that the impoundment has resulted in exceptional hardship.
30In making that determination, the regulation requires that I consider whether there was an alternative to the impounded vehicle and if not, whether the impoundment resulted in a threat to the health and safety of any person ordinarily transported by the vehicle.
31In this case, the appellant was able to make alternate transportation arrangements in some cases and on other occasions appointments or hockey practices/games were missed. Although the appellant’s spouse missed two doctor’s appointments in Orillia, there was no evidence that suggested that missing those two appointments posed a threat to her health and safety.
32I have no doubt that managing the transportation needs of a family of six without a mainland vehicle had been difficult and has caused the appellant and his family a great deal of inconvenience. However, the regulation specifically prohibits me from considering inconvenience in determining whether the impoundment in resulted unexceptional hardship.
33With respect to financial loss, the regulation provides that financial loss may result in exceptional hardship if the owner demonstrates (among other things) that no alternative to the impounded vehicle is available. As mentioned above, the appellant was able to make alternate transportation arrangements. In those circumstances the regulation prohibits me from considering financial or economic loss resulting from the impoundment as exceptional hardship.
34Accordingly, I conclude that the appellant has not established that the impoundment will result in exceptional hardship.
ORDER
35Pursuant 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: February 22, 2019