Date: 2019-07-23

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:

Gordon Bertrand

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: May 21, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Gordon Bertrand, appeals the impoundment of his 2010 Ford Ranger. The vehicle is normally in the possession of Mr. Bertrand’s step-daughter-in-law, J.S. On April 20, 2019, R.S. took the truck from J.S.’s home in Ottawa. She was stopped by police and when it was discovered that she had a suspended licence, the car was impounded for 45 days.

2The appeal is made on the basis that the impoundment of Mr. Bertrand’s vehicle has caused exceptional hardship to J.S. He argued that without the truck, J.S. is unable to transport her two daughters and take herself to school for her personal support worker course. Further, J.S. is on social assistance and has no alternative to the impounded truck.

3The Registrar argues that Mr. Bertrand has not made out his onus to show that there is exceptional hardship for J.S. She lives in Ottawa and has alternatives available when needed. In addition, there is insufficient evidence of any immediate, significant, and lasting impact.

4After considering all of the evidence provided, and based on the reasons below, the Tribunal finds that Mr. Bertrand has not established, on a balance of probabilities, that J.S. is experiencing 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 Mr. Bertrand’s vehicle has caused exceptional hardship for J.S.

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, Mr. Bertrand 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.

10Mr. Bertrand lives approximately 60 kilometres from Ottawa, where J.S. lives and the impoundment took place. He testified that though he rarely sees or speaks with J.S., he gave her his truck so that she would be able to use it for herself and her two daughters.

11R.S., who is known to Mr. Bertrand, visited J.S. on the night of the impoundment. R.S. would have known the truck belonged to Mr. Bertrand. According to her driver’s record, she has not held a valid driver’s licence in over ten years. At some point during the night of April 20, 2019, J.S. went to sleep, permitting R.S. to remain in her home for the night. R.S. took the truck and was later stopped by police. Mr. Bertrand was phoned, as the owner of the truck, and told that the truck had been impounded. J.S. only learned of the impoundment the next morning.

12The first question that the Tribunal must consider is whether an alternative to the impounded vehicle is available. In this instance, however, it is not about whether an alternative is available to Mr. Bertrand, but rather to J.S., as she is a person ordinarily transported by the truck.

13J.S. did not testify before the Tribunal. According to Mr. Bertrand, J.S. was not working at the time of the impoundment. She was attending a personal support worker training program. She has two daughters, ages six and three.

14Mr. Bertrand testified that because he has very little contact with J.S., he does not know what her day to day life is like, and for what purposes she might use the truck. He could only assume that she transported herself to her personal support worker course, and drove her younger daughter to day care. He believed J.S.’s older daughter took a school bus to school.

15Beyond this, there was no evidence as to J.S.’s daily needs and how the truck assists her in meeting those needs. There was also no evidence as to whether J.S. had any friends or other family from whom she may receive assistance in her daily transportation needs, or whether public transit or taxis were a viable option. Mr. Bertrand did provide an opinion that using public transit with two small children would be difficult, but in the absence of any facts relating to J.S.’s use of public transit, the Tribunal cannot accept Mr. Bertrand’s opinion on this issue.

16Section 10(4) of the Regulations state that in order to demonstrate 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.

17In this instance, the Tribunal does not have enough evidence to conclude that every reasonable option has been considered, or even to indicate what the nature of threat or loss to J.S. would actually be, beyond speculation by Mr. Bertrand.

18While the Tribunal appreciates that Mr. Bertrand wishes only for his step-daughter-in-law to not be deprived a vehicle that she might need, the Tribunal finds that Mr. Bertrand has not established, on a balance of probabilities, that J.S. has no alternative to the impounded vehicle available to her.

ORDER:

19After considering all of the evidence provided, the Tribunal confirms the impoundment.