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:
Elizabeth Plumb
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Christine Lortie, representative
For the Respondent:
Steve Grootenboer, agent for the Registrar
Heard by teleconference:
July 13, 2021
Overview
1On May 13, 2021, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.1of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section requires 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 ended on June 27, 2021. The appellant arranged to have the vehicle retrieved from the impound on July 9, 2021.
2The appellant appeals the impoundment on the ground the impoundment caused 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 resulted 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 one or more of those grounds.
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 was no alternative to the impounded vehicle, the Tribunal is 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:
a) the appellant is the registered owner of the impounded vehicle
b) on May 13, 2021 the vehicle was stopped while being driven by a person whose licence was suspended as a result of a Criminal Code conviction
c) the vehicle was impounded pursuant to s. 55.1 of the HTA
d) the vehicle was eligible for release on June 27, 2021
11Victoria Burleigh, the appellant’s daughter, testified on behalf of the appellant. Although the appellant is the owner of the impounded vehicle, given ongoing medical issues, she has not driven the vehicle for over a year. Ms. Burleigh is the principal driver of the vehicle and usually has possession of it. While the appellant lives in Trenton, Ms. Burleigh lives in Belleville and usually travels in the appellant’s vehicle to Trenton to assist the appellant with her transportation needs.
12The appellant lives in a retirement facility and not many of the other residents drive so she was not able