Date: 2019-07-22

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:

Jose Baires

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Jose Baires, Appellant Jilma Baires, Appellant’s Daughter

For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: By teleconference July 2, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1A hearing was held on July 2, 2019, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The Appellant’s vehicle was impounded on June 7, 2019. The Appellant’s son, C.B. who lives with the Appellant, drove the Appellant’s vehicle while his licence was under suspension.

3The Appellant appealed the impoundment on the ground that it would result in exceptional hardship.

4For the reasons set out below, I confirm the impoundment.

B. ISSUES

5The issue under the appeal is whether the impoundment resulted in exceptional hardship.

C. EVIDENCE

6The Appellant testified that he knew that his son’s licence was under suspension, however, on the day in question, the son took the Appellant’s car because his daughter – who was also living with the Appellant at the time – was sick. The Appellant’s son took the vehicle to buy medication for his daughter, while the Appellant was sleeping.

7The Appellant gave detailed testimony about the effect of the impoundment on him and his family. The impounded vehicle is mainly used by the Appellant’s wife. The Appellant’s wife has just found a new job. She works Monday to Friday, from 5:00 a.m. to 2:00 p.m. As there is no public transit in the area, she has to drive about 15 minutes to work. The Appellant works from 7:00 a.m. to 4:00 p.m., so he is not able to drive his wife to work. The Appellant has another vehicle that he uses to go to work.

8Since the impoundment, the Appellant’s wife has had to rely on another son of theirs to drive her to work, causing great inconvenience to that son. Without the use of a vehicle, the Appellant’s wife also cannot do grocery shopping on her own.

9The Appellant also testified about the financial hardship caused by the impoundment. His family is a working class family. The Appellant and his wife must work to make ends meet. Apart from living expenses, they have a mortgage on their home. The cost of retrieving their car from the impound adds to their financial burden. The son who drove the Appellant’s car and lives with him is going to school, not working and not paying rent.

10Most importantly, the Appellant submitted that it is totally unfair to him and his wife when it was not their fault that their son drove the Appellant’s vehicle without his knowledge or permission. The Appellant should not be expected to lock away his car key in his own home. But since the impoundment, the Appellant now puts a lock on a door in his house and hides his vehicle key. Both the Appellant and his wife are going through a lot of anxiety. The Appellant also stated that it is unfair to expect other family members to go out of their way to help them when the vehicle is under impoundment.

11Under questioning from the Registrar, the Appellant confirmed that both he and his wife are in good health and have no medical issues. Neither has missed any medical appointments since the impoundment. The only time off the Appellant has taken since the impoundment was for the purpose of attending the hearing.

12The Registrar gave evidence at the hearing and clarified that the Appellant’s son’s licence has been suspended since 2017 indefinitely for dangerous driving; he has previously been convicted with impaired driving, failure to remain or return to scene of accident, and failure to provide breath or blood sample under the Criminal Code.

D. LAW

13Section 55.1 of the HTA sets out when the police can impound a vehicle for driving while suspended. More specifically, it provides that the vehicle shall be impounded for 45 days if a person drives a vehicle while his/her licence is under suspension under certain sections of the HTA, and if there has been no previous impoundment in the last two years.

14Subsection 50.2(3) of the HTA lists four 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.

15Section 10 of O. Reg. 631/98 (the “Regulation”) is very specific and 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 set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements.

16If no alternative is available, then I shall 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. O. Reg. 456/10, s. 3.

17Pursuant to s. 10(2) of the Regulation, the Tribunal may only consider whether the impoundment will result in inconvenience, financial or economic loss; or loss of employment or employment opportunity to any person, if the owner demonstrates pursuant to s.10(3) that,

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 license was under suspension resulted in the impoundment of the motor vehicle; and

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

18The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

19Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS

20There is no question that the impoundment has affected the Appellant and his family in many ways, financially and otherwise. The Appellant’s wife has had to rely on others to get to her work and to do grocery shopping. The Appellant’s daughter gave a very compelling account of how the impoundment has affected her parents, who are in their sixties, and who did not cause the impoundment and did not “deserve” this.

21I am very cognizant of the impact that the impoundment has on the Appellant and his family. However, the evidence confirms that the Appellant did have alternatives to the impounded vehicle. The Appellant himself has another vehicle that he uses, and one of his children is able to drive the Appellant’s wife to work. While I appreciate the Appellant does not want to inconvenience anyone, the fact that such options are available to him and his wife militates against a finding of exceptional hardship.

22In addition to the options for transportation noted above, I find that the other conditions under s.10 of the Regulation have not been met. While the Appellant is obviously very stressed by the impoundment, there has been no threat to his health or safety, or to the health and safety of any person ordinarily transported by the vehicle. The Appellant confirmed that both he and his wife are in good health. They have not missed any medical appointments as a result of the impoundment, and they have access to 911 and hospital services in their community.

23I also find that while the Appellant had missed a day of work to prepare for this hearing, he had not sustained loss that is significant and lasting. The Appellant also has not provided any evidence to show any loss that will impact on any person ordinarily transported by his vehicle.

24In view of the above, I find that the Appellant has not established that he will suffer exceptional hardship as the term is defined under the Act.

25While I appreciate why the outcome may seem unfair to the Appellant since the impoundment was caused by an action of his son, I am bound by the law and statute that governs impoundment matters.

ORDER

26For the reasons set out above, pursuant to s. 50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant’s motor vehicle.