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 for driving while suspended.
Between:
Lavita Naraine-Ramkumar
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Evelyn Spence, Member
APPEARANCES:
For the Appellant: Lavita Naraine-Ramkumar, Self-Represented
For the Respondent: Leila Pereira, Agent
Held by teleconference: October 28, 2022
A. OVERVIEW
1The appellant, Lavita Naraine-Ramkumar, appeals the 45-day impoundment of her 2010 Acura TSX (the “vehicle”). On September 25, 2022, the vehicle was impounded because it was being driven by the appellant’s husband, whose licence was under suspension as a result of a Criminal Code conviction.
2The appellant requests that the Tribunal make a finding that the impoundment be set aside and that the Registrar of Motor Vehicles (the “Registrar”) be ordered to release the vehicle.
B. ISSUE AND DECISION
3The issue to be decided is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
4For the reasons that follow, the impoundment is confirmed. I find that the impoundment does not result in exceptional hardship.
C. LAW
5The intent of the Act is to promote public safety by preventing persons whose driver’s licenses are suspended for certain reasons from operating motor vehicles. Pursuant to s. 55.1 of the Act, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for various Criminal Code-related offences.
6The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2 of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the period of impoundment.
7There are limited grounds on which an owner may appeal an impoundment, and the appellant bears the burden of proving that they fall within one of the grounds of appeal set out in s. 50.2(3) of the Act.
8In the present case, the single ground listed in Ms. Naraine-Ramkumar Notice of Appeal and identified at the hearing was that the impoundment will result in exceptional hardship.
D. ANALYSIS
9Section 10 of Ontario Regulation 631/98 (the “Regulation”), made under the Act, sets out the criteria that the Tribunal may consider, and others that it may not, in determining whether an impoundment will result in exceptional hardship. The test for exceptional hardship in the impoundment context is very difficult to meet.
10Pursuant to s. 10(1) of the Regulation, the Tribunal’s first step in assessing exceptional hardship is to consider whether an alternative to the impounded motor vehicle is available. If the Tribunal finds that there is an alternative to the impounded vehicle, then the Tribunal need not consider any other requirements – the ground of exceptional hardship will have failed.
a) The appellant’s circumstances
11Ms. Naraine-Ramkumar lives in Hamilton with six members of her family, including her husband and her adult brother and sister. The members of her family have four vehicles, all in good working condition, including two that are registered in the appellant’s name. One is the impounded vehicle, registered jointly with her husband, and another is a van, which the appellant testified she has only driven once. In explaining this, Ms. Naraine-Ramkumar stated that the van is too big for her, and she does not feel comfortable driving it.
12The appellant has a full-time job working as a general labourer in a factory in Mississauga. Her hourly wages are modest, so she supplements her income by performing a second, part-time, job as a personal support worker (“PSW”) for a client in Woodstock.
13In the month that the appellant has been without her vehicle, she confirmed that she has been able to get essentials for herself and her family, including food and any other necessities. Ms. Naraine-Ramkumar’s sister has given her rides to get groceries and she testified that she has been able to manage on her own for other errands. Her dependants have been healthy, and she has been able to get their staples with relative ease.
14Ms. Naraine-Ramkumar testified that she relies on the use of her primary vehicle to travel to and from work, but fortunately, the impoundment has not resulted in her having missed any days of work at the factory. She has managed to make all her shifts by commuting with her brother, sister and a neighbour, who also works in Mississauga and has been willing to help her out. Ms. Naraine-Ramkumar expressed that when taking rides from her neighbour, she feels she is inconveniencing him because it means he must leave his home earlier than he otherwise would, but she also testified that “he says he does not mind.”
15Despite not experiencing any absences from her full-time work, Ms. Naraine-Ramkumar explained that the impoundment has resulted in her missing all of her Saturday shifts as a PSW. The distance is too great for her to take taxis, Ubers or public transportation and she has not been able to find any alternative means to travel to and from that job. As a result, the client has hired someone else to replace the appellant during the period of the impoundment. The client has expressed to Ms. Naraine-Ramkumar that she may return to her job only if the PSW replacing her “does not work out.”
b) Alternative to the impounded vehicle
16The legal threshold for confirming whether there is an “alternative to the impounded vehicle” is not simply whether the appellant owns or has access to a second vehicle. Instead, s. 10 (4) of the Regulation sets out what an appellant must show in order to meet this initial prong of the test, as follows:
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.
17In this case, the appellant’s evidence is that there are alternatives to the impounded vehicle, in that Ms. Naraine-Ramkumar:
a. Owns a second vehicle (a van), which has valid licence plates and is in good working condition;
b. Has access to at least two other vehicles, being those belonging to her brother and sister, both of whom live with the appellant and keep their vehicles with them;
c. Has been able to avail herself of rides from her family members and neighbours to travel to and from work; and,
d. Has had her and her family’s immediate needs met, including through assistance from others.
18While some of the above-noted alternatives may not be ideal, and do not provide her with the freedom to travel independently or perform her secondary work in Woodstock, they are available options which have helped to mitigate the threat or loss of her full-time employment and have assisted her in meeting her immediate and pressing needs.
19Given that I have found there are alternatives to the impounded vehicle available, I do not need to consider the other provisions of s.10(1) of the Regulation.
E. ORDER:
20I find that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
21Pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment of Ms. Naraine-Ramkumar’s vehicle. The vehicle shall remain at the impound facility for the remainder of the impound period.
LICENCE APPEAL TRIBUNAL
Evelyn Spence, Member
Released: November 02, 2022