Date: March 11, 2019

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:

P.D.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: P.D., Self-represented

For the Respondent: Sonia DeSantis, Agent

Heard by teleconference: 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 impoundment of her 2014 Dodge (the “vehicle”) on January 18, 2019 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to work and to her medical appointments.

ISSUE

3The issue to be determined is whether the impoundment will result in exceptional hardship.

CONCLUSION

4I find that the appellant’s evidence fails to support a finding that the impoundment results in exceptional hardship.

LAW AND ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA

(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;

7The appellant seeks to have her vehicle released on the basis that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

8I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

9Section 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, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…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 impound period.

10If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

11In limited circumstances described below, I may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

(a) financial or economic loss to any person;

(b) loss of employment or employment opportunity to any person; or

(c) loss of education or training or of an educational or training opportunity to any person

12The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

(a) No alternative to the impounded motor vehicle is available;

(b) The loss will be immediate, significant and lasting;

(c) The impact of the loss will be upon a person ordinarily transported by the motor vehicle, and

(d) The impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c), or (d).

13Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

14The appellant testified that she needs the vehicle to get to work and to her medical appointments. Four nights a week she drives approximately fifteen minutes to her work in another municipality. The appellant works the night shift starting at 11 p.m. to 7 a.m. as a personal support worker at a retirement home. Since the impoundment of her vehicle she has not had to miss any work due to loss of the vehicle because her father has loaned her his vehicle to drive to work. She testified that she believes this arrangement is likely to continue until March 4, 2019 but if her father changes his mind, the appellant said she has access to bus service that she could use to get to work. As a result, the appellant has not and will not require the impounded vehicle to get to work. The appellant testified that she receives income from ODSP and also CPP disability and that this income has not been affected by the impoundment of her vehicle

15The appellant has a medical condition and needs to see her specialist once a month. During the impoundment period the appellant testified that she missed one of her specialist appointments due to weather and the loss of use of her vehicle. She said she was able to reschedule the appointment for the next month. The appellant testified that she will not lose access to the medication she has been prescribed by the specialist during the impoundment period because her pharmacy can ask the specialist to renew her prescription. The appellant lives with her parents who have access to their own vehicle and there is 911 emergency services available to her where she lives.

16The appellant testified that payment of the impoundment fees will be a large financial loss to her.

17Although the impoundment has caused inconvenience to the appellant in getting to her work and in having to reschedule one medical appointment, this is not a factor which the Tribunal can take into consideration.

18I find that the appellant has alternatives to the impounded vehicle available to her and because there are alternatives to the impounded vehicle, I cannot consider the financial loss to the appellant. Because the appellant has alternatives to the impounded vehicle I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.