Date: 2019-07-25

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:

Deborah Sims

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Asad Ali Moten

Appearances:

For the Appellant: Self-represented

For the Respondent: Nora Challis, Agent

Heard by teleconference: June 14, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Deborah Sims, appeals the impoundment of her 2005 Volkswagen. Ms. Sims uses the car on a daily basis to make sales calls in her sales job. On April 13, 2019, R.P. was driving Ms. Sims’ son to a birthday party. R.P. has a condition on his licence requiring any vehicle he drives to be equipped with an ignition interlock device, which Ms. Sims’ car does not have. R.P. was stopped by police, and upon discovering this condition, the car was impounded for 45 days.

2The appeal is made on the basis that the impoundment of Ms. Sims’ car has caused her exceptional hardship. She argued that the impoundment fees have put a strain on her financial position, and that she simply cannot afford the impoundment.

3The Registrar argues that Ms. Sims has not made out her onus to show that there is exceptional hardship because there are alternatives available to Ms. Sims, and consequently, financial losses cannot be a consideration.

4After considering all of the evidence provided, and based on the reasons below, the Tribunal finds that Ms. Sims has not established, on a balance of probabilities, that she experienced exceptional hardship as a result of the impoundment. The Tribunal confirms the impoundment.

B. ISSUES

5The issue to be determined is whether the impoundment of Ms. Sims’ vehicle has caused exceptional hardship for Ms. Sims.

C. EVIDENCE, LAW, and ANALYSIS

6The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Pursuant to s.55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.

7An owner whose vehicle has been impounded can appeal to the Tribunal to have the Registrar release the vehicle on the basis of any of the grounds listed in s. 50.2 of the HTA. Appellants have the onus to establish that any of the grounds in s. 50.2 have been met. In this instance, Ms. Sims appeals to the Tribunal based on s. 50.2(3)(d), which states:

s. 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.

8Section 10 of O. Reg. 631/98 (the Regulation) provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation, the Tribunal may only consider financial or economic loss, loss of employment or employment opportunity, or loss of a training opportunity if the owner of the vehicle can demonstrate that:

• There is no alternative to the impounded motor vehicle available;

• The loss will be immediate, significant and lasting;

• The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and,

• The impact of the loss will be on someone other than the suspended driver whose driving resulted in the impoundment, and the loss is not suffered by the suspended driver.

9Inconvenience to any person is not exceptional hardship.

10Ms. Sims testified that on April 13, 2019, her son was to bicycle to a birthday party. It was windy out, so, unbeknownst to Ms. Sims, R.P. offered to drive him. R.P. was at the time of the impoundment, and remains, subject to a mandatory ignition interlock device requirement on any vehicle he drives. Ms. Sims’ car did not have an ignition interlock device, and when R.P. was pulled over by the police, the car was impounded for this violation.

11As a result of the impoundment, Ms. Sims had to, at great inconvenience and expense, rent a car for three weeks in order to get to her job. After the three weeks were up and renting a car proved prohibitively expensive, she purchased a car for the interim period until she could get her Volkswagen out of the impound lot. She was eventually able to come up with the money and have the car released from the lot after the impoundment period was over.

12She testified that although it was difficult, she managed and did not miss any work or appointments. Her son takes the bus to school. There were no reported risks to health and safety as a result of the impoundment. Ms. Sims secondary employment, run out of her home, did not suffer.

13The first question that the Tribunal must consider is whether an alternative to the impounded vehicle was available. In this case, it is clear to the Tribunal that there was. Ms. Sims made efforts to obtain another car by renting and then purchasing. This provided her with the means to fulfill her daily transportation needs.

14Because the Tribunal is satisfied that Ms. Sims had alternatives to the impounded vehicle available to her, the first step of the test is not met. This step is a threshold question, and as a result it is not necessary to consider the remainder of the test described in section 10 of the Regulation.

15While the Tribunal recognizes that Ms. Sims went to great lengths and expense to meet her transportation needs, financial and economic loss cannot be considered by the Tribunal as exceptional hardship unless the owner can demonstrate that there was no alternative to the impounded vehicle.

ORDER:

16After considering all of the evidence provided, the Tribunal confirms the impoundment.