Vinodh Beharry v. Registrar of Motor Vehicles, 2021 CanLII 117540

Date: 2021-11-15

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:

Vinodh Beharry

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Vinodh Beharry, Self-Represented

For the Respondent: Stephen Grootenboer, Agent

Date of Teleconference Hearing: November 2, 2021

Overview

1Mr. Vinodh Beharry (“appellant”) appeals the impoundment of his 2011 Nissan A5S (“vehicle”).

2The vehicle was impounded on October 5, 2021 when it was discovered by police being driven by the appellant’s son, Vinesh Beharry.

3Vinesh’s driver’s licence was subject to a condition that prohibited him from driving a vehicle not equipped with an ignition interlock device. The appellant’s vehicle was not so equipped and, when the police discovered Vinesh driving the vehicle, it was impounded for 45 days as required under the Highway Traffic Act (“Act”).

4The appellant appeals the impoundment on the ground that it will result in exceptional hardship.

5For the reasons set out below, I conclude that the impoundment will not result in “exceptional hardship” within the meaning of that term under the Highway Traffic Act (“Act”) and regulations and I confirm the impoundment of the appellant’s vehicle.

THE LAW

6Under the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person in contravention of a condition that prohibits him/her from driving a vehicle not equipped with an ignition interlock device.

7The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

8The Act allows only five grounds on which an owner may appeal, and they include “that the impoundment will result in exceptional hardship”, the ground the appellant relies on in this case. The onus is on the appellant to establish the facts that support the ground of appeal on a balance of probabilities.

9A regulation made under the Act (Ontario Regulation 631/98 9 (“Regulation”)), sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.

10Section 10 of the Regulation provides that in determining whether an impoundment will result in exceptional hardship, the Tribunal must consider whether an alternative to the impounded vehicle is available. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle. However, the regulation specifically states that the Tribunal shall not consider inconvenience to any person when considering whether an impoundment will result exceptional hardship.

11In order to show that no alternative to the impounded vehicle is available, the Regulation requires the owner to demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.

APPELLANT’S CIRCUMSTANCES

12The appellant lives in Uxbridge, Ontario in a household that incudes the appellant, his spouse and their two adult children. The household has four vehicles, one for each adult in the household.

13The impounded vehicle is normally used by the appellant’s daughter Savita, who is a 4th year student at the University of Ontario in Oshawa, Ontario. She uses the vehicle to travel from her home to the university in Oshawa 4 days per week. She usually spends the whole day on campus attending in-person classes and engaging with other students, teaching assistants and professors.

14Since the impoundment, Savita has not been able to attend classes regularly. According to the appellant, although the classes are available on-line, she finds that difficult and does better when she can seek and get assistance in person. She lately has had to request extensions for assignments because she was not able to get the assistance and direction from teaching staff that she would normally get in-person.

15According to the appellant, there is no feasible public transportation available from Uxbridge to Oshawa. The appellant has considered UBER and used it a couple of times however, the cost ($80 round trip), is prohibitive. They have also considered renting a vehicle for the duration of the impoundment but consider that to be cost prohibitive as well.

16There are occasions when Savita can get a ride or a pick-up from family members or friends but that is sporadic and unreliable. The situation has had a negative impact on her academic performance and has been stressful for her, especially since this is her final year of her program.

17There are three vehicles in the household in addition to the impounded vehicle. The appellant and his spouse each have their own vehicles, but they operate a business in Scarborough, Ontario that requires their presence 7 days a week. Apparently, the appellant and his spouse each drive their own vehicle to Scarborough. The business consists of preparing meals for take-out and delivery to customers, including one institution. According to the appellant, he and his spouse usually leave early in the morning and return in the evening, sometimes as late as 10 pm.

18The appellant’s son also lives in the appellant’s household. He also has a vehicle (which is equipped with an ignition interlock device), but he needs it each day for work. He works in downtown Toronto at a business which requires him to drive to different locations around the GTA to photograph advertising. The son also works in the family business administering on-line orders. He sometimes delivers meals and requires his vehicle for that as well.

ANALYSIS

19In my view, the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is used in the Act and Regulation.

20The Regulation requires that I consider whether there is any alternative to the impounded vehicle and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle. In this case I conclude that there are viable alternatives to meet Savita’s transportation needs.

21Firstly, I note that Savita can attend her classes on-line and does not have to be physically present in the classroom in Oshawa. I agree that is not ideal because it does not accommodate in-person interaction with teaching staff, but it does mean that the impoundment has not deprived her of all learning opportunity.

22Secondly, there are three vehicles in the household in addition to the impounded vehicle. It appears to me that with some flexibility and adjustments to schedules, there should be opportunities to realistically accommodate at least some of Savita’s transportation needs.

23I note that she has been able to attend some classes using UBER or getting rides from friends or family when schedules permit. I also note that both the appellant and his spouse apparently drive their separate vehicles to the same business premises each day. I was provided with no evidence as to why that was necessary or whether the appellant and his spouse explored the option of sharing a vehicle, if only occasionally.

24It appears that Savita’s transportation needs are capable of being met through a combination of attending classes on-line, using UBER, getting rides from family or friends, or using one of the three remaining vehicles in the household when circumstances permit. No doubt such arrangements require flexibility and will likely result in inconvenience for all concerned. However, I am specifically prohibited from considering inconvenience to any person when determining whether the impoundment will result in exceptional hardship.

25Based on the above, I conclude that in this case the impoundment will likely result in inconvenience, but it will not result in “exceptional hardship” as set out in the Act and Regulation.

ORDER

26Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.