Licence Appeal Tribunal
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:
Melissa Fernandes Appellant
- and -
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Melissa Fernandes, Self-Represented
For the Respondent: Stella Velocci, Agent
Date of Teleconference Hearing: March 21, 2022
Overview
Ms Melissa Fernandes (“appellant”) appeals the impoundment of her 2018 Dodge Caravan (“Caravan”).
It was impounded on February 15, 2022, when it was discovered by police being driven by Ashley Fernandes, the appellant’s spouse.
Ashley’s driver’s licence was subject to a condition that prohibited him from driving a vehicle not equipped with an ignition interlock device. The Caravan does not have such a device and when the police discovered him driving it, it was impounded for 45 days as required under the Highway Traffic Act (“Act”).
The appellant appeals the impoundment on two grounds: (a) The vehicle was stolen at the time it was impounded. (b) The impoundment will result in exceptional hardship
For the reasons set out below, I conclude that the Caravan was not stolen at the time it was impounded, and the impoundment will not result in “exceptional hardship” within the meaning of that term under the Highway Traffic Act (“Act”) and regulations.
I therefore confirm the impoundment of the Caravan.
The Law
Under sections 55.1(1) 2. and 55.1(3) 1. of the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person in contravention of a condition that prohibits him/her from driving a vehicle not equipped with an ignition interlock device.
Under section 50.2 of the Act, the owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the vehicle be released.
The Act allows only five grounds on which an owner may appeal, and they include the two grounds that the appellant relies on in this case.
The onus is on the appellant to establish the facts that support the grounds of appeal on a balance of probabilities.
A regulation made under the Act (Ontario Regulation 631/98 9 (“Regulation”)) sets out the factors that the Tribunal must consider when determining whether an impoundment will result in exceptional hardship.
Section 10 of the Regulation provides that the Tribunal must consider whether an alternative to the impounded vehicle is available. If no alternative is available, then the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
The Regulation specifically states that the Tribunal shall not consider inconvenience to any person when considering whether an impoundment will result in exceptional hardship.
To show that no alternative to the impounded vehicle is available, the Regulation requires the owner to demonstrate that every other reasonable option has been considered, including using another vehicle, or making arrangements to do without the vehicle during the impound period.
The Impoundment
Ms Fernandes stated that she resides with her husband and their three young children who are 6, 5 and 3 years old. Ms Fernandes works at home caring for her family and Ashley works daily outside of the home. The family has two vehicles – the Caravan registered jointly to Ms Fernandes and her husband, and a 2011 Hyundai registered to Ms Fernandes only.
The Caravan is used by