Date: 2022-10-24

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:

Sean Calvo

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Sean Calvo, Self-represented

For the Respondent: Leila Pereira, Agent

Heard by teleconference: October 17, 2022

REASONS FOR DECISION AND ORDER

background

1Sean Calvo (the “appellant”) appeals the impoundment of his 2022 Mitsubishi Eclipse motor vehicle (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The vehicle was impounded on September 18, 2022 for 45 days. At the time of impoundment, the vehicle was being driven by Gary Maze (“Maze”) whose licence was then under suspension.

2The appellant appeals on the grounds that the impoundment will result in exceptional hardship.

ISSUES

3The issue to be determined is whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.

result

4For the reasons set out below, the impoundment of the appellant’s vehicle is confirmed.

ANALYSIS

Exceptional Hardship

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 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.

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.

10The appellant does not allege that 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.

11The appellant alleges that he will suffer economic losses due to the impoundment and that he is unable to transport his daughter to his home, and to visit their relatives, on weekends when he is entitled to access.

12The appellant works driving a tractor trailer for a moving company. This is a full-time job, and the appellant is required to travel to his employer’s premises which is about ten kilometers from his home and about five kilometers outside of Owen Sound where he lives. There is no public transportation available which will get him to work.

13Since the impoundment, the appellant has gotten to work by taking taxis and getting rides with co-workers. He was able to use his employer’s vehicle for the first five days of the impoundment. Some of the appellant’s work takes him away from home for days at a time and he does not need his own vehicle during those assignments. The appellant says he has missed four or five days from working since his vehicle was impounded.

14With respect to his daughter, the appellant says that his ex-wife has been driving his daughter to his home on the weekends so that he can have access. However, this has caused his ex-wife to be upset with him. He also says that he is unable to drive his daughter to the beach or to visit their relatives, who live in a different municipality, as he normally would.

15The appellant has been able to conduct his remaining activities such as obtaining groceries and conducting other personal errands by using public transportation, taxis, and grocery delivery services.

16The appellant cannot afford to rent a vehicle during the impoundment period. He has asked family members to lend him their vehicles, but they are unable to do so for various reasons. His employer was able to allow the appellant to take one of its vehicles home the first weekend of the impoundment, but is unwilling, or unable, to do so since then.

17I am satisfied that the appellant has no alternative to the impounded vehicle to the extent that he has had to miss occasional days from work and has been unable to transport his daughter to visit their relatives out of town.

18However, I am not satisfied that the appellant has established exceptional hardship according to the Act and Regulation. The appellant has not demonstrated that the economic and financial losses he has suffered will be significant or lasting. He has been able to continue working for the most part and will likely continue to do so after the impoundment is over. I do not consider that missing occasional days from work satisfies the requirements under the Regulation to show losses that are significant and lasting such that they amount to exceptional hardship.

19Although the appellant’s daughter has been unable to visit her out-of-town relatives during the impoundment period, I find that this loss does not fall within the definition of exceptional hardship set out in the Regulation.

20I find that the appellant and his daughter have experienced inconvenience as a result of the impoundment, however the Tribunal may not consider inconvenience when considering whether the impoundment will result in exceptional hardship under the Act.

21I find that the appellant has failed to prove that the impoundment will result in exceptional hardship under the Act and the appeal on this ground must fail.

ORDER

22For the reasons set out above, and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.