Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Tribunal File Number: 13876 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:

John Hill Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: John Hill, Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference:

March 17, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on March 17, 2022 to consider the appellant’s appeal of the impoundment of his 2017 Infinity (the “vehicle”) on February 10, 2022 for 45 days.

2The appellant’s brother, who did not have a valid driving licence at the time, was driving the vehicle when it was impounded. The appellant submits that the vehicle was stolen by his brother. The appellant also submits that the impoundment will result in exceptional hardship because he cannot afford to be without the vehicle. He submits he needs it to get to school and his part-time employment. Further, the appellant submits that the payment of the impound fees to obtain the vehicle at the end of the impoundment period will cause him financial hardship.

B. ISSUES:

3The issues to be determined are:

a. Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?

b. Will the impoundment result in exceptional hardship?

C. RESULT:

4I find that the appellant’s evidence fails to support a finding that the vehicle was stolen at the time of impoundment, or that the impoundment results in exceptional hardship.

D. 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 (a), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded and (d), that the impoundment will result in exceptional hardship.

Was the appellant’s vehicle stolen at the time it was impounded?

7I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that his vehicle was stolen on a balance of probabilities. He has not done so.

8The meaning of stolen is not defined in the HTA.

9In Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, by Linda P. Lamoureux, Executive Chair, found at paragraph 16 the meaning of the word “stolen”, in the context of the HTA, to be:

“I also find that the Tribunal erred in finding that “stolen” within the meaning of s. 50.2 (3) (a) of the HTA amounts to use of property contrary to the owner’s instructions: such a definition broadens the meaning of “stolen” beyond the ordinary meaning of the term and what the language of the legislation can reasonably support. This was a significant error of law.”

10I accept that “stolen” in s. 50.2(3)(a) of the HTA does not mean use of the vehicle contrary to the appellant’s instructions.

11The appellant testified that what he meant by “stolen” is that his brother did not have his permission to use the vehicle. The appellant stated that he did not wish to have any criminal charges laid against his brother for stealing the vehicle.

12Given these admissions by the appellant, I find that the appellant’s vehicle was not stolen.

Will the impoundment result in exceptional hardship?

13I find that the impoundment will not result in exceptional hardship because the appellant has alternatives to the impounded vehicle.

14Section 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 impoundment period.

15If 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.

16Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

17I 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.

18The appellant testified that he lives with his brother and the brother’s girlfriend in a municipality approximately a two- and one-half hour commute from a large metropolitan city (the “city”) where he attends school and works part-time several days a week and on the weekends. The appellant testified that he takes a bus to a public transit train and then another form of public transit to his school. He stays in the city from Wednesday to Friday and returns to his home with his brother and his girlfriend. On the weekend, he typically drives the vehicle into the city to work at his part-time employment over the weekend.

19The appellant testified that he needs the income he earns on the weekend to pay for the public transit he uses, the expenses for the vehicle and his school and other bills. Without his vehicle, the appellant testified that he cannot work at his part-time employment over the weekend and is suffering financially. The brother’s girlfriend in her testimony corroborated the appellant’s testimony. Further, she testified that, although she can walk to work in six minutes from her home, she also needs the vehicle to be able to work extra shifts at her employment.

20The appellant testified that he is losing hours at his part-time employment and has lost some days at school because he cannot drive his vehicle into the city

21Although the appellant spoke of his inability to use public transit to go into the city for work and school because it is a financial strain and the commute takes much time out of his day, the inconvenience of taking public transit is not a factor which the Tribunal can take into consideration.

22Because the appellant has public transit available to him as an alternative to the impounded vehicle, albeit at a cost, I am unable to consider the appellant’s submissions related to financial or economic loss. The appellant’s preference to drive his own vehicle as opposed to taking public transit is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.

23I find that the appellant has an alternative to the impounded vehicle. Therefore, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

24Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.

Avril A. Farlam, Vice-Chair