J.R. v. Registrar of Motor Vehicles, 2019 CanLII 29108

Licence Appeal Tribunal

Date: 2019-02-22

File Number: 11841/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:

J.R. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Patricia McQuaid, Vice-Chair

Appearances:

For the Appellant: Self-represented For the Respondent: Sonia De Santis, Agent

Hearing by teleconference: February 20, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on February 20, 2019 to consider the appellant’s appeal of the 45 day impoundment of her 2003 Ford F150. The vehicle was impounded on December 31, 2018 and was eligible to be returned to the appellant on February 14, 2019, upon payment of the towing and impoundment charges. At the hearing, the appellant confirmed that she has picked up the vehicle, having paid $3519.60 for its release.

2The issue to be determined is whether the impoundment has resulted in exceptional hardship to the appellant, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) and regulations.

CONCLUSION

3On the evidence before me at the hearing, I find that the impoundment has not resulted in exceptional hardship as defined in section 50.2(3)(d) of the Act.

EVIDENCE

4The appellant and her family live on a First Nations reserve. On December 31st, at approximately 7 a.m., the appellant’s partner, A.K., who is a suspended driver, was driving her to work at the gas bar, which is located on the reserve, approximately three miles from her home. He was then going to deliver wood to an elder on the reserve. They were stopped by an OPP officer who had passed them, then turned around and followed them for a distance before pulling them over. The officer stated that he pulled them over because he could not clearly see the front licence plate on the vehicle.

5A.K’s licence was suspended in August 2000 for “blood alcohol content in excess of .08” contrary to the Criminal Code. His licence was suspended for one year for that offence; however, it remains suspended for failure to complete a remedial program which was required as a result of the impaired driving conviction.

6The appellant did not miss work on the day of the impoundment - the police officer drove her to work. Nor did she miss any days of work during the impoundment period. She does not have another vehicle, so she paid a relative approximately $500 to drive her to and from work through the impoundment period. She also paid someone to drive her to get groceries in a town approximately 18 miles away.

7The appellant is diabetic, but she was able to pick up her medication during the impoundment period. She had to reschedule one doctor’s appointment. Her two daughters and two grandchildren live with her. The grandchildren did not miss school because of the impoundment. One of the grandchildren did get sick during the impoundment period but was able to go to a clinic facility. 911 services are available on the reserve.

LAW AND ANALYSIS

Has the impoundment resulted in exceptional hardship?

8Section 10(1) of Ontario Regulation 631/98 (“the Regulation”) requires that when determining whether exceptional hardship will result from an impoundment under s. 55.1 of the Act, I must first consider “whether no alternative to the impounded motor vehicle is available”. The burden of proving exceptional hardship rests on the appellant. The test set out in s.10(4) of the Regulation is strict:

“in order to show that no alternative to the impounded motor vehicle is available…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.”

9Only if the appellant can show that there is no alternative to the impounded vehicle, can I then consider whether the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meet the criteria of s. 10(3) of the Regulation.

10The appellant was forthcoming in her evidence. She did have an alternative to the impounded vehicle, though given that she gets paid minimum wage, paying $500 for transportation was at significant cost to her. She made the necessary arrangements for alternate transportation to get to work and other day to day activities, including groceries and medical appointments. There is no evidence that the impoundment resulted in a threat to health or safety.

11There is no question that the loss of the vehicle for 45 days had an impact on the appellant. It was inconvenient and the resulting costs were not insignificant. The cost for release of the vehicle on February 14th was substantial. As the appellant stated, she needed to work for the 45 day period to save enough money to pay for it.

12But, as noted previously, the grounds for relief for exceptional hardship under the Act are very narrow. Inconvenience and the additional costs which the appellant incurred are not enough on these facts to meet the strict requirements of the Act and Regulation and specifically, s. 10(3) of the Regulation, which requires that there be no alternative to the impounded vehicle and only then can any financial loss that could be established be ‘immediate, significant and lasting’ be considered. Given that the appellant did have an alternative to the impounded vehicle, the Tribunal cannot consider the financial impact upon her.

13I accept that the appellant has experienced some hardship as a result of the impoundment and I am sympathetic to her circumstances, but she has not established exceptional hardship as defined in the Act and her appeal must therefore fail. The legislation is very prescriptive and the grounds upon which the Tribunal can order the release of a vehicle are very limited, which can, in some situations, result in harsh consequences for an appellant.

ORDER

14For the reasons set out above, pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment order.