J.R. v. Registrar of Motor Vehicles, 2019 CanLII 29119

Date: 2019-02-25

File Number: 11858/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:

J.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: C.G., Agent

For the Respondent: Sanjay Kapur, Agent

HEARD by teleconference on: February 21, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on February 21, 2019 to consider the appellant’s appeal of the 45 day impoundment of her 2006 Ford (the “vehicle”). The vehicle was impounded on January 1, 2019 and released to the appellant’s daughter, at the end of the 45 day impoundment period. The appellant is requesting that the Tribunal make a finding that the impoundment should have been set aside and order the Registrar of Motor Vehicles (the “Registrar”) to reimburse her for the impoundment fees for the 45 day period.

2The appellant, the owner of the vehicle, is 77 years of age and resides in Manitoba. Although the vehicle is registered in her name, several months ago she gave the vehicle to her daughter, C.G., to use. C.G. represented her mother at the hearing.

3On the day of the impoundment, C.G. permitted her boyfriend to drive the vehicle because she was feeling sick and experiencing mechanical difficulties with the vehicle. Her boyfriend has a condition on his licence stipulating that he is only permitted to drive vehicles equipped with an ignition interlock device. The appellant’s vehicle is not equipped with such a device.

4Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that a person is driving a vehicle in contravention of a condition, prohibiting driving a vehicle without an ignition interlock device. The vehicle was impounded pursuant to this subsection of the Act.

5The appellant is appealing the impoundment based on exceptional hardship.

ISSUE

6The issue to be determined is whether the impoundment will result in exceptional hardship?

CONCLUSION

7On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3) (d) of the HTA.

LAW AND ANALYSIS

8The owner of a vehicle that has been impounded, pursuant to s. 55.1(1) of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

9There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the ground of exceptional hardship.

Exceptional Hardship

10Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.

11The appellant’s daughter, C.G., testified that her mother gave her the vehicle to use several months ago, primarily so she could drive from her home in northern Ontario to her parents’ residence in Manitoba to help them downsize and to assist her mother with her father’s care, when needed. Her mother has a heart condition and is on a waiting list for knee and hip surgery. Her father suffers from Alzheimer’s.

12C.G. explained that it takes her at least two days to drive to Manitoba; due to her back problems, she cannot drive for more than six or seven hours at a time, and she typically stays overnight in Thunder Bay when making the trip to Manitoba. In response to a question on cross-examination, she estimated that she has visited her parents about nine times in the last three years, most recently, in October 2018 for five weeks. She would have wanted to visit her mother during the time that the vehicle was impounded, to assist with an incident involving her father, but was unable to do so without the vehicle. She acknowledged that her brother resides in the same town as her parents.

13C.G. explained that her mother does not require the vehicle which was impounded and that she owns a “brand new” Hyundai. According to C.G., her mother uses the Hyundai on a daily basis to go shopping, do errands and attend medical appointments. C.G. also testified that her parents have pensions as well as a line of credit. She informed that her mother insisted on paying the impoundment fees and for repairs to the vehicle, as she knows that C.G. is on disability benefits and awaiting back surgery. C.G. acknowledged that paying the impoundment fees and vehicle repairs “did not drain her parents financially”. However, she emphasized that it was extremely stressful for her mother to complete the paperwork associated with filing this appeal and securing the release of the vehicle from the impound facility at the end of 45 days.

14In response to a question, C.G. admitted that she has another 2004 vehicle which she can use to do errands within the city in which she resides. However, this vehicle is not in good condition, and she could not use it to drive to Manitoba. C.G. also stated that she has three adult sons, one of whom resides with her. According to C.G., her sons assisted her, while the vehicle was impounded, to the best of their ability.

15I am sympathetic to the inconvenience and stress in which the appellant and her daughter found themselves because of the impoundment. However, the evidence does not support a finding of exceptional hardship. The appellant does not require the vehicle for herself, and she has another newer vehicle which she uses on a daily basis. She has given the vehicle to her daughter to use, in particular so that she can travel to Manitoba to visit and assist her. However, C.G. only travels to Manitoba a few times a year and is awaiting back surgery in Ontario. In addition, C.G. has another vehicle which she uses on a daily basis within the city in which she resides.

16For the above reason, I find that the appellant did not satisfy the test that there was no alternative to the impounded vehicle. Accordingly, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER

17Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.