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:
John Viletel
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Donna Viletel, spouse of the Appellant
For the Respondent: Sanjey Kapur, Agent
Heard by Teleconference: June 16, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1John Viletel (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 11, 2021. At the time of the impoundment, the driver, the appellant’s daughter Kim Viletel, 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.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUE TO BE DETERMINED
4The 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
5Section 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.
6Subsection 10(1) requires the Tribunal to 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:
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.
7If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.
8The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if the owner demonstrates the following:
a) no alternative to the impounded motor vehicle is 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 her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
ii. will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
9The Tribunal can never consider whether the impoundment will result in inconvenience to a person.
EVIDENCE AND ANALYSIS
10The appellant’s evidence, as detailed below, demonstrates that the appellant had 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.
11The respondent submitted the following documents into evidence, under the seal of the Ministry of Transportation: the Vehicle Record of the impounded vehicle, Notice to Registrar dated May 11, 2021, Notice of Impoundment and Release, Driving Record of Kim Viletel, Plate Search regarding impounded vehicle, and Plate Search regarding a 2007 Mitsubishi Outlander owned by Donna Viletel. Pursuant to ss. 49 and 210(7) of the Act, those documents were admitted into evidence and accepted, absent evidence to the contrary, for the truth of the facts contained therein. The appellant stated that he had no evidence to contradict the facts described in the documents filed.
12The Ministry of Transportation’s records disclose that the appellant is the registered owner of the impounded vehicle, a 2006 Pontiac Torrent. At the time of impoundment, Kim Viletel was driving the vehicle while her driver’s licence was under suspension. At the hearing, the appellant agreed that these facts are true.
13Although the appellant was present at the hearing and provided some evidence, most of the appellant’s evidence was given by his spouse, Donna Viletel. According to Mrs. Viletel, she and her husband live together in Welland. They are both retired. Mrs. Viletel is 75 years old and in good health. The appellant is 80 years old and has severe COPD. The appellant is required to attend regular medical appointments to manage his health, and some of those appointments require him to travel out of town, mainly to St. Catharines which is about a 20-minute drive from their home.
14The appellant and Mrs. Viletel argue that the impoundment will cause exceptional hardship in that they will be unable to use the impounded vehicle to attend the appellant’s out-of-town medical appointments. They also allege that they are unable to afford to pay the cost of releasing the impounded vehicle and will have to allow the vehicle to be sold.
15In addition to the impounded vehicle, Mrs. Viletel owns a 2007 Mitsubishi Overland. Mrs. Viletel says that she and the appellant have no trouble getting around Welland using the Mitsubishi. They typically use that vehicle to get groceries, run errands, and attend in-town medical appointments. However, Mrs. Viletel testified that she is concerned that the Mitsubishi is not mechanically fit for highway driving. She has had some repairs done recently and is saving money to make further repairs, but she is currently only using the Mitsubishi for short trips. The impounded vehicle is the one the appellant and Mrs. Viletel use for highway driving because they believe it to be safer than the Mitsubishi.
16The appellant alleges that he and Mrs. Viletel do not have a vehicle that they can use to attend medical appointments that are out of town during the impoundment period. The appellant and Mrs. Viletel allege that they cannot afford to take taxis to his appointments and cannot afford to rent a vehicle. According to the appellant, he has had to cancel two medical appointments that were scheduled to take place in St. Catharines, because of the impoundment.
17However, the appellant and Mrs. Viletel testified that they have been able to attend some of the appellant’s out-of-town appointments by getting rides with their granddaughter, with whom they have a close relationship. The appellant’s granddaughter lives 20 minutes away from their home and is very attentive to them. She has come to their home regularly to help and is willing to drive them to all their out-of-town appointments. Mrs. Viletel acknowledged that their granddaughter would have driven them to the appointments in St. Catharines that they canceled, but the appellant could not attend those appointments anyway because he was sick with a stomach ailment.
18The appellant’s granddaughter has also offered to trade cars with the Viletels during the impoundment period so that they do not need to use the Mitsubishi and could travel to out-of-town appointments on their own.
19Mrs. Viletel testified that, although she and the appellant do not know how to use ride-sharing services, their granddaughter has offered to arrange Uber rides whenever they need them. Mrs. Viletel says that she and the appellant can afford to use Uber to travel out of town as necessary. Although Mrs. Viletel raised a concern that the appellant has difficulty wearing a mask due to his COPD, and that this would make it difficult for him to use ride-sharing services, he is able to do so if necessary. I note that there are exemptions to provincial mask-mandate for persons who are unable to use them due to a medical condition.
20Finally, Mrs. Viletel testified that the appellant has no medical appointments scheduled before the end of the impoundment period and that they have no intention of leaving town before then. Their intention is to use the Mitsubishi at least until the impoundment is over.
21Based 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 and Mrs. Viletel have the Mitsubishi for local purposes. Their granddaughter is willing to drive them to out-of-town appointments. They could accept their granddaughter’s offer to let them use her vehicle. They can use ride-sharing services such as Uber with the help of their granddaughter.
22In addition to the above, the appellant alleges that he and Mrs. Viletel will be unable to afford to have their vehicle released from impound. Mrs. Viletel testified that she has been told that the appellant will have to pay over $4,000 to have the vehicle released and she says that they cannot afford to pay that amount.
23I am sympathetic to the appellant’s circumstance, but this is not a factor the Tribunal may consider in determining the issue of exceptional hardship. 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 alternatives to the impounded vehicle, financial hardship cannot be considered.
24Given 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
25For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: June 21, 2021