File Number: 12925/MVIA
Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act
Between:
Deborah Osborne
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jacqueline Castel
Appearances:
For the Appellant: Deborah Osborne, Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and Date of Hearing: By Teleconference October 28, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on October 28, 2020 to consider the appellant’s appeal of the 45 day impoundment of her 2000 Pontiac, Sunfire (the “vehicle”). The vehicle was impounded because it was being driven by a person whose licence was under suspension. The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle.
2The appellant brought her vehicle to Firestone to have the tires balanced. When the mechanic completed the job, he asked her to take the vehicle for a test drive. The appellant stated that she would not know what to look for during a test drive. Another customer in the waiting room, Jeffrey Caldwell, offered to perform the test drive for the appellant. The appellant did not know Mr. Caldwell, nor did she ask to see his driver’s licence before allowing him to drive her vehicle. She accompanied Mr. Caldwell in the passenger seat while he drove her vehicle. They were stopped by the police, and the police determined that Mr. Caldwell’s licence was under suspension. As a result, the police directed that the vehicle be impounded.
3The appellant is appealing the impoundment on the ground of exceptional hardship. She is not alleging that Mr. Caldwell stole her vehicle or that she exercised due diligence in attempting to determine that he had a valid driver’s licence, before allowing him to drive her vehicle.
ISSUE:
4The issue to be determined is whether the impoundment will result in exceptional hardship.
CONCLUSION:
5On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(d) of the HTA.
LAW AND ANALYSIS:
6The owner of a vehicle that has been impounded. pursuant to s. 55.1(1) of the HTA, may appeal the impoundment under s. 50.2 and request an order that the Registrar release the vehicle.
7There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the ground of exceptional hardship.
Exceptional Hardship
8Section 10 of O. Reg.631/98 (the “Regulation”) 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. I find that the appellant has not met this first requirement.
7The appellant testified that she resides on her own in Toronto. She stated that, since her vehicle was impounded, she has ordered groceries on-line and relied on a neighbour and friend to pick them up for her. She indicated that she is able to walk to Shoppers Drug Mart and her physiotherapy appointments from her home.
8The appellant testified that she normally babysits her grandson in Georgetown twice a week. She stated that she has not been able to do this during the period of impoundment, as she is not comfortable taking public transportation, including the GO Train, in light of the pandemic. She explained that her son was off work due to illness for a couple of weeks, and therefore able to look after his son during some of the impoundment period. She also stated that her son’s girlfriend, the mother of the child, has been off work and at home with the child throughout the period of impoundment. The appellant confirmed that her son and his girlfriend have a vehicle.
9The appellant testified that she is a low income individual and does not have the money to pay the impoundment fees.
10There is no doubt that the appellant has been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because she has alternatives to the vehicle. Specifically, she is able to walk to appointments and the drug store and has relied on a friend to pick up groceries for her. While she has not used the GO Train to go to Georgetown to babysit her grandson during the period of impoundment, her son or the child’s mother have been able to look after him.
11Since the appellant did not satisfy the test that there was no alternative to the impounded vehicle, I do not need to consider the other provisions of s. 10 of the regulation.
ORDER:
12Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
___________________________
Jacqueline Castel, Member
Released: October 29, 2020