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
Between:
Levi Vanschepen
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Levi Vanschepen, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: June 18, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1Levi Vanschepen (the “appellant”) appeals the impoundment of his motor vehicle, under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on May 14, 2021. At the time of the impoundment, the driver, Kassidy Tucker, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that the impoundment will cause exceptional hardship. For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUE TO BE DETERMINED
3The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
LAW
4Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
5Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
6If the owner fails to prove that no alternative to the impounded vehicle is available, then his appeal under s. 50.2(3)(d) of the Act must fail. Only where an owner has established that there is no alternative available is the Tribunal able to consider whether the appellant may rely on exceptional hardship as a ground upon which an impoundment may be appealed.
EVIDENCE AND ANALYSIS
7The appellant’s evidence, as detailed below, demonstrates that the appellant has alternatives to the impounded vehicle available to him and his appeal under s. 50.2(3)(d) of the Act must fail as a result.
8The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2012 Hyundai;
(2) on May 14, 2021, police discovered the Hyundai being driven by Kassidy Tucker;
(3) Ms. Tucker’s licence was under suspension. It had been suspended since September 24, 2019 as the result of a Criminal Code offence involving drinking and driving;
(4) the police impounded the Hyundai under s. 55.1 of the Act;
(5) the appellant is the registered owner of another motor vehicle: a 2013 Subaru; and
(6) the Hyundai will be released from impoundment on June 28, 2021.
9The appellant testified that he lives in Dorchester. His girlfriend, Kassidy Tucker, spends most nights with him but also spends some time living with her mother. Dorchester is not a large community and the appellant has been able to perform his personal activities, such as grocery shopping, using his bicycle as transportation. The appellant testified that there are no personal activities he is unable to do because of the impoundment.
10The only inconvenience the appellant alleges he has experienced as a result of the impoundment is in getting to work. He has been employed in the weld department of the Toyota Boshoku plant in Woodstock for the last eight years. The plant is less than half an hour from the appellant’s home by car. Since the impoundment, the appellant has been paying co-workers $25-a-day to drive him to and from work. He says he can afford this. The appellant says he would not be able to afford to take a taxi or Uber to work every day.
11It is the appellant’s intention to continue to get to work in this manner. He says he will hire a taxi or Uber if there are any days that he is unable to find a co-worker to drive him, but he expects that to be required only rarely, if at all.
12In addition to the impounded vehicle, the appellant owns a 2013 Subaru motor vehicle. The appellant says that the Subaru is not currently road-worthy in that it needs new tires and a new starter motor. The appellant says that it would cost him in excess of $1,000 to replace the tires and another $1,000 to replace the starter motor. The appellant says that he cannot afford to make those repairs at this time. The appellant testified that he earns approximately $55,000 a year from his employment and did not present any evidence as to why he would be unable to afford to repair the Subaru. The appellant said that he is able to afford to pay his co-workers to drive him to work because those payments are spread out over time and not one lump-sum. On questioning by the Registrar’s representative, the appellant agreed that he might be able to afford the repairs to the Subaru using his credit card.
13Based on the above evidence, I conclude that the appellant has failed to show that there is no alternative to the impounded vehicle available to him. The appellant has been able to perform his personal activities by using his bicycle. He has been able to get to work by paying his co-workers to drive him. The appellant did not present evidence which satisfies me that he is unable to afford to make the repairs to his Subaru so that he could use that vehicle if he chooses to do so.
14In addition to the above, the appellant alleges that he will be unable to afford to pay the cost of having his vehicle released from impoundment. The appellant has not determined the actual cost of having the vehicle released but believes that it will be more than he can afford.
15I am sympathetic to the appellant’s circumstances, but impoundment costs are not a factor the Tribunal may consider in determining the issue of exceptional hardship in this case. Under s. 10(3) of the Regulation, financial or economic loss to a person can only be considered if certain conditions are met, the first of which is that there be no alternative to the impounded vehicle. Since the appellant does have reasonable alternatives to the impounded vehicle, financial hardship cannot be considered.
16Given that the appellant has failed to show that there is no alternative to the impounded vehicle available to him, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.
ORDER
17For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: June 23, 2021