B.B. v. Registrar of Motor Vehicles, 2019 CanLII 51315

Date: 2019-05-24

Appeal under Section 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:

B.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, agent

Heard by Teleconference: May 21, 2019

Overview

1B.B. appeals the 45-day impoundment of her vehicle on April 23, 2019, after it was driven by her partner, who has a suspended licence, and subsequently impounded by the police.

2The appellant appeals on the ground that the impoundment will cause her and her newborn baby exceptional hardship.

3After considering the evidence, the appellant has not shown that she will suffer from exceptional hardship during the impoundment. Therefore, the impoundment is confirmed.

ISSUE

4The issue to be determined is whether the impoundment will result in exceptional hardship.

WHETHER THE IMPOUNDMENT WILL RESULT IN EXCEPTIONAL HARDSHIP

LAW

5Under s. 50.2(3)(d) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of her vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.

6Section 10 of O. Reg. 631/98 (the Regulation) provides specific criteria that must be considered when determining the outcome of an appeal under this section.

7Under that Regulation, I must first consider whether there are reasonable alternatives available for the impounded vehicle. This means that every reasonable option has been considered, including making arrangements to do without any motor vehicle during the impoundment period.

8If there is no reasonable alternative to the impounded vehicle, then I may consider a threat to health or safety to a person as well as the following factors:

a. financial or economic loss,

b. loss of employment or employment opportunity, or

c. loss of education or training.

9In order to meet the test of exceptional hardship, the above losses must:

a. be immediate, significant and lasting,

b. impact on a person ordinarily transported by the vehicle, and

c. impact someone other than the suspended driver.

EVIDENCE

10The appellant testified that the impoundment will cause her and her family financial strain. She is currently on parental leave with her two-month-old daughter. She documented her monthly income to show that she did not have the resources to pay for a car rental to replace the impounded vehicle, and she cannot afford the tow and impoundment fee.

11She testified she needs the car to take herself and her baby to medical appointments. She also requires the car to go to Stratford where groceries are more economical than the grocery store in her small town.

12During the impoundment period she has been relying on rides from her grandmother, her partner’s father, and the girlfriend of her partner’s father in order to get to medical appointments and to go grocery shopping. All of these family members live 30 minutes to 45 minutes away.

13As a result of the impoundment she has had to reschedule one medical appointment but was able to attend that appointment one week later. Her baby has not missed any of her appointments.

14The appellant has not suffered any economic losses other than reimbursing family members for gas costs and for their assistance.

15The respondent submitted that the appellant did not meet the test for exceptional hardship as she has access to alternative transportation through her families’ assistance during the impoundment period. In the respondent’s submission, these alternatives mean that the appeal on the ground of exceptional hardship is not available. The respondent also submits that the cost of the impoundment is not something the Tribunal should consider. Finally, the impact of the impoundment on the suspended driver is also not a consideration the Tribunal can consider under the regulation for exceptional hardship.

ANALYSIS

16In order to be successful on appeal on the ground of exceptional hardship, the appellant must demonstrate that there is no alternative to the impounded vehicle.

17The evidence shows that the appellant has been assisted by family members who have vehicles. The appellant has compensated them for their assistance in driving her and her baby around during the impoundment period, though she wasn’t able to say how much she paid family members. Although the impoundment has caused the appellant and her family difficulty during the first few weeks of her baby’s life, the evidence shows that she and her baby are able to go where needed during the impoundment period. As she has alternative transportation available to her, an appeal on the grounds of exceptional hardship is unavailable.

18Unfortunately, pursuant to the Regulation, I am not able to consider the inconvenience to the appellant or her family members under this ground of appeal. I also cannot consider any financial or employment losses experienced by the suspended driver.

19Even if I had found that the appellant did not have access to alternative transportation, the evidence showed that the impoundment has not caused a threat to the health or safety of anyone. Further, the appellant has not suffered an immediate, significant and lasting financial or employment loss during the impoundment period.

20The appellant’s recourse with respect to the cost of the impoundment itself is set out in s. 55.1(27) of the Act which allows the appellant to recover costs of the impoundment and any other losses incurred during the impoundment from the suspended driver. The high cost of the impoundment and the appellant’s inability to pay the impoundment fee is not a consideration I am able to take into account under the ground of exceptional hardship.

21This has no doubt been a difficult time for the appellant. The appellant no doubt did not plan on having to handle a newborn and the loss of her vehicle at the same time. Thankfully she has assistance from her family. Unfortunately, the Regulation sets out a very specific test for exceptional hardship, and in this case, the facts do not support that ground of appeal.

ORDER

22The impoundment of the appellant’s motor vehicle is confirmed.