Date: 2019-03-27

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:

D.G.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: D.G.

For the Respondent: Sanjay Kapur, 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 his 2000 Honda (the “vehicle”) on January 25, 2019 for 45 days.

2The appellant submits that the impoundment will result in exceptional hardship to him because his daughter needs the vehicle to get to work and because the impoundment fees will be a financial hardship.

ISSUES

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), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

7The appellant seeks to have his 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 alternative modes of transportation available to the impounded vehicle.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that must be considered by the Tribunal 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), the Tribunal 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.

11I can only consider financial, employment and education or training losses listed in s. 10 (2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. If I find that the appellant has not established that there is no alternative to the impounded vehicle.

12Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

13The appellant testified that he personally drives a vehicle provided by his employer and no one else is allowed to drive it. He also stated that his wife owns a car.

14The appellant purchased the vehicle for his daughter to drive to her work which is approximately 12 kilometers from their home. Since the impoundment his daughter and his wife have had to share his wife’s vehicle. Because his wife and daughter work different hours, typically his daughter drives his wife to work in his wife’s car and then drives to her own work. This results in his wife and daughter having to be ready for work earlier than normal to accommodate their different work hours. Since the impoundment there have also been times when his daughter has had to ask a friend for a ride. The appellant’s daughter testified and confirmed that this will be an expensive lesson for her.

15Although the appellant spoke of the inconvenience of his wife and daughter having to share the wife’s vehicle during the impoundment period, this is not a factor which the Tribunal can take into consideration.

16The appellant does not require the impounded vehicle for his own use as he has the use of a vehicle provided by his employer. Given that the appellant has been able to arrange for his wife and his daughter to share his wife’s vehicle during the impoundment period, the appellant’s daughter also has an alternative to the impounded vehicle. The appellant’s daughter has a further alternative available to her on occasion when she has received a ride from friends.

17I find that the appellant has alternatives to the impounded vehicle available to him and to his daughter and because there are alternatives to the impounded vehicle, I cannot consider the financial loss to the appellant or his daughter. As I have found there are alternatives to the impounded vehicle, the appellant has failed to make out exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

18Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.