Laura Koch v. Registrar of Motor Vehicles, 2021 CanLII 60481

Date: 2021-07-02

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:

Laura Koch

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Laura Koch, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: July 2, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Laura Koch (the “appellant”) appeals the impoundment of her 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 30, 2021. At the time of the impoundment, the driver, Michael David Koch, 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 the 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 an alternative to the impounded vehicle available to her and her 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 2014 Nissan;

(2) on May 30, 2021, police discovered the Nissan being driven by Michael David Koch;

(3) Mr. Koch’s licence was under suspension. It had been suspended since April 18, 2018 as the result of a Criminal Code offence involving drinking and driving and has never been reinstated;

(4) the police impounded the Nissan under s. 55.1 of the Act; and

(5) the Nissan will be released from impoundment on July 14, 2021.

9The appellant lives in Arnprior, Ontario with her parents. She works part-time at a Walmart store in Ottawa, which is approximately 45 minutes from Arnprior by car. As the result of the impoundment, the appellant has had to borrow her parents’ vehicle to get to work and has missed four or five shifts because her parents required their vehicle to attend medical appointments. The appellant’s parents have no more medical appointments before the impound expires and she will be able to use their vehicle for all of her upcoming shifts at work.

10The appellant testified that she is able to use her parents’ vehicle for all personal needs, such as doing her shopping and running errands, and does not allege any other hardship will be experienced due to the impoundment.

11Based on the appellant’s evidence, I conclude that the appellant has failed to show that there is no alternative to the impounded vehicle available to her.

12In addition to the above, the appellant alleges that she will be unable to afford to pay the cost of having her vehicle released from impoundment. I 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 a reasonable alternative to the impounded vehicle, financial hardship cannot be considered.

13Given that the appellant has failed to show that there is no alternative to the impounded vehicle available to her, 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 her appeal must fail on this ground.

ORDER

14For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.