Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension
Between:
Aurea Alenio
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, agent for the Registrar
Heard by teleconference:
December 9, 2021
Overview
1On November 12, 2021, the appellant’s vehicle was impounded for 45 days, pursuant to section 55.5(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section allows a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period will end on December 27, 2021.
2The appellant appeals the impoundment on the ground the impoundment is causing exceptional hardship. For the reasons outlined below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
Issue
3The issue to be determined is whether the impoundment has resulted or will result in exceptional hardship.
The Law
4Section 50.2 of the HTA allows only a few limited grounds on which an owner may appeal, one of which is exceptional hardship. The onus is on the appellant to establish exceptional hardship.
5Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.
6Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
7Section 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.
8If this initial step of the test for exceptional hardship is met, I then must consider whether on a balance of probabilities, 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.
9Additionally, the Regulations stipulate that unless the appellant demonstrates there is no alternative to the impounded vehicle, I am prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship.
Evidence and Analysis
10The respondent presented documentary evidence which established that:
- the appellant is the registered owner of the impounded vehicle
- in November 2021, the vehicle was stopped while being driven by a person whose licence was suspended as a result of a Criminal Code conviction
- the vehicle was impounded pursuant to section 55.1 of the HTA
- the vehicle was eligible for release on December 27, 2021
11The appellant testified. She is presently living in London and works shifts at a local long-term care facility. Her weekly hours of work vary.
12The appellant said that on November 12, she had her COVID vaccine as it was the last day she could get it without being laid off. After getting the vaccine she and a friend drove, in the appellant’s car, to Glencoe, some distance away, as she had arranged to have snow tires put on her car.
13When they went to drive back to London, the appellant said she started to feel lightheaded and asked her friend to take over the driving. He agreed to do so. She did not check his licence as she had seen him drive in the past when they both lived in Toronto and thought he had a licence.
14The vehicle was stopped by police and the police determined that the appellant’s friend was an unlicenced driver as a result of a Criminal Code conviction. The vehicle was impounded.
15Since the impoundment the appellant has had to use the London bus system to get to work. It is about a 10-12-minute walk from her apartment to the bus and then another 6-7-minute walk at the other end to get to her place of employment. She has not missed a day of work since the impoundment except for the day the car was impounded.
16The appellant has a history of heart issues which are regularly monitored through doctor’s appointments and blood testing. The doctor’s appointments are done by phone and the impoundment has not affected them. The appellant took a bus to the blood labs on November 22, 2021 for her monthly testing.
17The appellant lives a short walk from the grocery store and has been able to access groceries during the period of impoundment. She said she sometimes feels out of breath when she walks and must stop for a rest. Although taxi service and Uber are available, she has not used them due to the expense involved.
18She also said she thinks she will have a hard time covering the cost of the impoundment fees.
19The respondent’s agent argued the appellant did not met the initial criteria for exceptional hardship set out in section 50.2 of the Act as she had been using alternative methods of transportation.
20I agree with the respondent’s position and am satisfied the appellant has alternative means of transportation during the period of impoundment. She has used the bus for work and medical purposes and is able to walk to a grocery store. As she has not established that there is no reasonable alternative to the impounded vehicle, I cannot consider any financial hardship resulting from the impoundment.
21As the appellant has failed to show there was no alternative to the impounded vehicle, I need not consider the remaining components of the exceptional hardship test.
22Although it is clear the impoundment is resulting in inconvenience and stress for the appellant, she has failed to prove exceptional hardship under the HTA and her appeal must fail on this ground.
Order
23For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: December 14, 2021