Licence Appeal Tribunal
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:
Yasothara Paramanathan Appellant
and
Registrar of Motor Vehicles Respondent
AMENDED DECISION AND ORDER
Order Made by: Marisa Victor, Member
Appearances:
For the Appellant: Self-represented, assisted by Rutra Paramanathan For the Respondent: Sonia Desantis and Nora Challis, agents
Heard by Teleconference: May 31, 2019
Overview
1The appellant appeals the 45-day impoundment of her vehicle, after it was allegedly driven by her son, who has a suspended licence, and subsequently impounded by the police on April 19, 2019.
2The appellant appeals on the grounds that the driver of the vehicle was not under suspension and that the impoundment will cause her exceptional hardship.
3The appellant was assisted by her daughter, Rutra Paramanathan, who translated for her mother and testified as a witness.
4After considering the evidence, the appellant has not satisfied me that the driver of the vehicle was not under suspension at the time of impoundment or that she will suffer from exceptional hardship during the impoundment. Therefore, the impoundment is confirmed.
ISSUE
5The issues to be determined are:
a. Whether the driver of the vehicle was under suspension at the time of the impoundment; and
b. Whether the impoundment will result in exceptional hardship.
ISSUE 1: WAS THE DRIVER OF THE VEHCILE UNDER SUSPENSION AT THE TIME OF THE IMPOUNDMENT
LAW
6Under s. 50.2(3)(b) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of her vehicle on the basis that the driver of the vehicle at the time of the impoundment was not then under a suspension. The onus is on the appellant to prove this ground of appeal.
EVIDENCE
7The appellant testified that she loaned her vehicle to her daughter, Rutra, who does not have a suspended licence.
8Rutra testified that she was in control of her mother’s vehicle. Rutra borrowed it to go out with her children, her brother and some friends. She parked that car in a plaza so they could go eat. Late in the evening, she returned home in a friend’s car with her children to put them to bed. She left her mother’s car behind. She believes that in the early hours of the next morning her brother was sitting in the driver’s seat while it was parked when another car scratched it. Police were called and it was then that the vehicle was impounded. Rutra testified that she knew her brother had a suspended licence.
9Constable Thayalan testified for the respondent. He stated he was on duty that evening. He received a call at 12:35 am to attend a plaza in Scarborough for a collision. When he got to the plaza he interviewed the appellant’s son, Januthan Paramanathan. After informing him of his rights to counsel, the appellant’s son told Constable Thayalan that he could not find a parking spot and was moving the appellant’s vehicle to another parking spot when the collision occurred. Constable Thayalan also spoke to the other driver involved in the collision. That driver also confirmed that the Januthan was driving the appellant’s vehicle.
10The respondent also filed a driver’s abstract showing that Januthan had a suspended licence.
ANALYSIS
11The legislation is very specific that this ground of appeal applies to the person who was driving at the time of impoundment. Rutra agreed in testimony that she was not present at the time of impoundment.
12The evidence of Constable Thayalan was that the appellant’s son was driving the vehicle at the time of impoundment. I found Constable Thayalan’s testimony convincing that both the appellant’s son and the driver of the other vehicle confirmed the appellant’s son was driving the appellant’s car. I accept this evidence.
13The respondent also provided evidence confirming Januthan had a suspended licence on the day of the impoundment. This was not contested by the appellant.
14The appellant has therefore failed to prove that the driver at the time of impoundment was not under suspension.
ISSUE 2: WHETHER THE IMPOUNDMENT WILL RESULT IN EXCEPTIONAL HARDSHIP
LAW
15Under 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.
16Section 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.
17Under 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.
18If 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.
19In 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
20The appellant testified that the impoundment will cause her and her family financial strain. The appellant was concerned she would not be able to afford to pay to take the vehicle out of impoundment. She works at a Burger King and travelled there by public transit during the impoundment. As a result of the impoundment, she missed three shifts due to difficulties with transportation. Her income is from that job and from her husband’s pension. The appellant is generally in good health and missed no doctor’s appointments during the impoundment. In addition, she lives in Scarborough, an area of Toronto that is well serviced by 911 and public transit.
21Rutra testified that she has a vehicle and that if her mother needed help with groceries she would assist her.
22The respondent submitted that the appellant did not meet the test for exceptional hardship as she has access to alternative transportation through her daughter and through public transit. The appellant has a daughter who lives nearby who has a licence and a vehicle and who is able to assist. The appellant lives in a part of Toronto well serviced by public transit. In the respondent’s submission, these alternatives mean that the appeal on the ground of exceptional hardship is not available.
23In the alternative, the respondent submitted that the appellant has also been able to travel to her job at Burger King, only missing three shifts. The respondent submits that the losses suffered by the appellant are not immediate, significant or lasting. The respondent also submits that the cost of the impoundment is not something the Tribunal should consider.
ANALYSIS
24In 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.
25The evidence shows that the appellant can be assisted by her daughter who has a vehicle and lives nearby. The appellant has also made use of public transit to get to her employment. The evidence shows that the appellant has been able to go where needed to go during the impoundment period, except for three missed shifts at work. As she has alternative transportation available to her, an appeal on the grounds of exceptional hardship is unavailable.
26The 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 ability to pay the impoundment fee is not a consideration I am able to take into account under the ground of exceptional hardship.
27This has no doubt been a difficult time for the appellant. Thankfully she lives in an area well serviced by public transit and has assistance of family. The Regulation sets out a very specific test for exceptional hardship, and in this case, the evidence does not support that ground of appeal.
ORDER
28The impoundment of the appellant’s motor vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: July 23, 2019