Date: 2022-03-14

Tribunal File Number: 13868/MVIA

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:

Amanda Fonda

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Amanda Fonda

For the Respondent: Stella Velocci, Agent

Heard by teleconference: March 9, 2022

REASONS FOR DECISION AND ORDER

background

1A teleconference hearing was held on March 9, 2022 to consider the appellant’s appeal of the impoundment of her 2012 Kia (the “vehicle”) on February 10, 2022 for 45 days.

2The appellant submits that the impoundment has resulted in exceptional hardship to her because she needs her vehicle to get to her employment, and to transport her two children to school and appointments, one of whom has a medical issue.

ISSUE

3The issue to be determined is whether the impoundment has resulted in exceptional hardship.

result

4I find that the appellant’s evidence fails to support a finding that the impoundment has resulted in exceptional hardship.

LAW AND ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

7I find that the impoundment did not result in exceptional hardship because the appellant had alternatives available to the impounded vehicle.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. 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.

9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether 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.

10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

12The appellant testified that she had two jobs at the time her vehicle was impounded but she fears she may lose both jobs because of the impoundment. She works full time as a nurse in a medical office and part time as a waitress on the weekends. The appellant testified that she walked to her medical office employment one day but that took her one and one-half hours. The appellant hired a taxi one day but this cost her $40.00, a significant portion of her daily earnings from this employment. In addition, a friend has given her rides but is no longer willing to provide rides as confirmed in a text message filed at the hearing. The appellant testified that her medical office employer has allowed her to work two to three days a week during the impoundment period so far instead of the usual five days a week.

13The appellant testified that she had only been able to attend her waitress employment four times since the impoundment and this employer has told her that if she doesn’t start coming to work regularly, her employment will be terminated. This is also stated in a letter from this employer filed at the hearing.

14The appellant also testified that she needs her vehicle to take her young daughter to school and to medical appointments. During the impoundment she walked her daughter to school but that was difficult because the child is so young and friends have given her daughter rides to school. She testified that her daughter has a medical condition and she is concerned that if the school were to call her and her daughter needed to be taken for medical care, she would be unable to pick her daughter up and care for her. The appellant testified that she is also responsible for transporting her young step-son one day a week.

15During cross-examination the appellant confirmed that she and her daughter have access to 911 services and that, so far, she and her two children have not missed any medical appointments. The appellant testified that her children have missed some school because she does not have her vehicle.

16The appellant also testified that if she has to pay the impoundment fees to obtain release of her vehicle, this will be a financial hardship for her.

17The appellant’s evidence establishes that transportation during the impoundment period is inconvenient for her. However, inconvenience is not a factor which the Tribunal can take into consideration.

18I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

19I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period. Although inconvenient, difficult and time consuming, the appellant has been able to walk to her medical office employment and to walk her young daughter to school. To date the appellant and her daughter have received rides from friends. Even if these rides do not continue, as suggested by the text message filed with the Tribunal, the appellant has used and has access to taxi services. The appellant and her children have not missed any medical appointments and if an urgent issue arises with the appellant’s daughter, the appellant has access to 911 services.

20The appellant has received some accommodation from her medical office employer during the impoundment period in that she has been allowed to work reduced hours. The letter from her part-time employer indicates that “…if unreliable transportation continues to effect their capability of attending their scheduled shift, we will be forced to terminate employment”. The appellant has the opportunity to access other transportation to attend of both of her jobs, such as taxi services, albeit at a cost.

21As a result, I find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

22Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.