Date: 2019-03-12

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:

S.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Maureen Helt, Vice Chair

Appearances:

For the Appellant: S.R., Appellant

For the Respondent: Stephen Grootenboer

Court Reporter: Michelle Stone

Heard by Teleconference on: Hearing February 19, 2019

OVERVIEW

1A teleconference hearing was held on February 19, 2019 to consider S.R.’s (the “appellant”) appeal of the impoundment of the her motor vehicle pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the Act).

2The appellant’s vehicle was impounded on January 2, 2019 with the impoundment period ending on February 16, 2019. The appellant’s friend, D.M., drove her vehicle without her permission or knowledge while having a suspended licence. On the day of the impoundment, D.M. was pulled over by the police which resulted in the impoundment of the appellant’s vehicle.

3Section 50.2 of the Act provides that on an appeal the Tribunal may either confirm the impoundment or order the Registrar of Motor Vehicles (the Registrar) to release the vehicle.

4In this case, the 45-day impoundment period expired on February 16, 2019. Although the vehicle release date occurred before this appeal was heard, the appellant requested that the Tribunal proceed to consider the appeal and order the Registrar to release the vehicle as the practical effect of such an order is that the Registrar would, if the appeal is successful, reimburse the towing and impound charges paid by the appellant to recover her vehicle.

ISSUE

5The only issue raised by the appellant in this appeal is as follows:

a) Whether the impoundment results in exceptional hardship within paragraph (d) of s. 50.2(3) of the Act.

RESULT

6On the evidence before me I find that the impoundment did not result in exceptional hardship within the meaning of s. 50.2 (d) of the Act

LAW

7Subsection 55.1(1) of the Act 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. The vehicle was impounded pursuant to this subsection of the Act.

8Subsection 50.2(3) of the Act lists a number of grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of paragraph (d) of subsection 50.2(3), which states:

50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal 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(3) (a) of the Regulation, is that there must be no alternative to the impounded vehicle. This 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.

10The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in Subsection 50.2(3) of the Act.

ANALYSIS

Exceptional Hardship

11The appellant submits that her exceptional hardship results from the financial loss and impact she sustained as a result of the impoundment. To establish exceptional hardship under s. 50.2(3) (d) of the Act, she must first establish that there is no alternative to the impounded vehicle.

12If the appellant is able to establish that there is no alternative, she must then show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(2) or (3) of the Regulation. The appellant submits that the impoundment has resulted in a financial loss which she is unable to afford.

13The appellant indicated that she had transportation alternatives while her vehicle was impounded, specifically another vehicle. As such, she was able to mitigate any loss during the impoundment period, in that she was still able to take her children to school, to various activities and to run errands. . That being said, there is no question that the impoundment has affected the appellant personally and financially.

14The appellant testified in a very forthright and honest manner that the loss of her vehicle has impacted her tremendously and has caused a significant financial loss. It is the appellant’s position that given her modest financial circumstances, as a mother with five children, the impoundment cost of $30 per day plus the towing fee amounts to exceptional hardship. It has created significant financial stress as her only source of income is from the Ontario Disability Support Program as well as child care benefits.

15In considering the appellant’s appeal I recognize that the entire situation has been very difficult for the appellant and that, as a result of the impoundment, she has spent significant monies on impoundment fees which she can barely afford. This is clearly an additional burden on the appellant. However, the use by the appellant of various alternative means of transportation that were available to her during the impoundment period means that the “exceptional hardship” ground of appeal under s. 50.2(3) (d) of the Act is not available to the appellant.

ORDER

16For the reasons set out above, pursuant to subsection 50(2) (5) of the Act, I confirm the impoundment.