Eric Brandon v. Registrar of Motor Vehicles, 2021 CanLII 11892

Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2021-02-16

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:

Eric Brandon Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Eric Brandon, Appellant Judy Brandon, Appellant’s Spouse

For the Respondent: Stella Velocci, Agent

Place and date(s) of hearing: By teleconference February 12, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Eric Brandon appeals the 45 days impoundment of his motor vehicle on the grounds that the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on January 5, 2021 and a hearing was held on February 12, 2021, by teleconference, to consider the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

3For the reasons set out below, I confirm the impoundment.

B. ISSUES:

4The issue under the appeal is whether the impoundment will result in exceptional hardship.

C. LAW:

5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations.

6The impound period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 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 s. 50.2(3)(d) which states that the Tribunal may order the Registrar to release the motor vehicle where the impoundment will result in exceptional hardship.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal 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 the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.

9Section 10 (4) sets out what an appellant must show in order to meet this initial prong of the test:

10 (4) In order to show that no alternative to the impounded motor vehicle is available… 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.

10If the Tribunal finds that the appellant has no alternative to the impounded vehicle, s.10(1) then it 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.

11In the limited circumstances outlined below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s.10(2) of the Regulation:

• financial or economic loss to any person;

• loss of employment or employment opportunity to any person; or

• loss of education or training or of an educational or training opportunity to any person.

12Financial, employment and educational losses may only be considered if all the criteria listed in s.10(3) of the Regulation are met:

a) no alternative to the impounded motor vehicle if 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 his driver’s licence was under suspension resulted in the impoundment of the motor vehicle; and

ii. will be a result of a loss by the suspended driver of the type set out in clause 2(b), (c) or (d)

13Sections 10 (2) and 10 (3) together establish other factors that may or may not be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) “inconvenience to any person” in determining exceptional hardship.

14The 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.

15Following 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.

D. ANALYSIS:

Background

16The appellant lives in Barrie. His 39-year-old son, whose driver’s licence was under the criminal code suspension, drove his truck without his knowledge. The appellant’s son has an addiction issue and has been convicted previously for driving under the influence.

17The appellant lives with his spouse, their son, and their two grandchildren. The appellant works as a manager for a hardware store, while his wife is a customer service representative for a plumbing company. They have both maintained their employment during the pandemic. During the lock down, the appellant’s spouse works from home, but that may change when the province lifts the lock down in their region.

18The appellant’s son was working as a contractor. His employer would pick him up when they had work for him. The appellant is unsure about his son’s current employment situation. The appellant and his spouse hope that their son will go into rehab to address his addiction issue.

19Of the two grandchildren, the older grandson has finished high school and is working, while the granddaughter is attending classes online and working on a midnight shift at a local fast food restaurant. The appellant’s spouse drives their granddaughter to work.

20Financially the family is struggling, as their monthly expense exceeds their income. The appellant will have to borrow money or use his credit card to cover the impoundment fee if his appeal fails.

Is there No Alternative to the Impounded Vehicle?

21The first question I need to consider is whether there is no alternative to the impounded vehicle. For the reasons set out below, I find there are alternatives to the impounded vehicle.

22The appellant’s spouse also owns a vehicle, which she uses to take her husband and her granddaughter to work. The appellant goes to work early in the morning, so his wife also has to get up at 4:00 a.m. to take him there. Occasionally, the appellant also gets a ride to work from his colleagues. Although the appellant’s spouse may have to return to her workplace soon, there is no information before me to suggest that she cannot continue to drive her husband to work if the lockdown is lifted in their region before the end of the impoundment period.

23While I appreciate it is not an ideal situation to have to share one vehicle among a family of five, they do have another vehicle at their disposal. As the appellant’s spouse readily admits, they have “managed” since the impoundment.

24Based on all of the above, I thus find that there are alternatives to the impounded vehicle.

Is there Exceptional Hardship?

25If I am wrong about my finding as to an alternative to the impounded vehicle, I still find that the appellant has not established there is exceptional hardship for the following reasons.

i. Is there threat to the health or safety of any person ordinarily transported by the motor vehicle?

26I first determine whether there is any threat to the health and safety of any person ordinarily transported by the motor vehicle, and the answer is no.

27The appellant’s spouse confirms that, thankfully, no one in their household has any medical issues or has missed any medical appointments since the impoundment.

28While the appellant’s son clearly has a medical issue of addiction, there is no evidence before me indicating that he has any medical emergency since the impoundment, and no evidence to indicate that he would need the vehicle now to begin his rehab treatment.

29Therefore, I find the appellant has failed to establish exceptional hardship on the ground of threat to health and safety.

ii. Is there any economic loss that is immediate, significant and lasting?

30The appellant is mainly concerned about the financial impact of the impoundment as he has to pay for the release of the vehicle. The appellant submits it is unfair to penalize the owner of the vehicle for the actions of the driver.

31Under the law, the impoundment fee itself cannot be considered exceptional hardship.

32I note first of all that the only documentary evidence I have with respect to the financial hardship is a statement prepared by the appellant showing his monthly income and expense. The appellant has not provided any documentation (e.g. pay stubs or credit card statements) in support of his position. I am however willing to give the benefit of the doubt to the appellant and accept the prepared statement as an accurate depiction of his current financial situation.

33In addition to that, I also take into account the evidence given by the appellant’s spouse at the hearing.

34Both the appellant and his spouse have continued to work since the impoundment began and will continue to do so after. Their two grandchildren are also able to maintain their employment throughout this period. There is no evidence that anyone has lost their employment as a result of the impoundment.

35While I understand that the impoundment fee will add to this family’s financial woes, at the end of the day, the appellant has failed to establish that he and his family will suffer economic loss that is immediate, significant, and lasting, due to the impoundment.

36Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

37For 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.