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:
Chalene Weir
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Chalene Weir, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: January 14, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Chalene Weir (the “appellant”), appeals the impoundment of her motor vehicle, under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on December 14, 2021. At the time of the impoundment, the driver, the appellant’s roommate Timothy Hines, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that the impoundment will cause exceptional hardship.
3For the reasons set out below, the impoundment of the vehicle is confirmed.
ISSUE TO BE DETERMINED
4The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
LAW
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 consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that to show 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 fails to establish that there is no alternative available, then her appeal will fail. If 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 there is no alternative to the impounded vehicle and additional criteria are met.
9The Tribunal is not able to consider whether the impoundment will result in inconvenience to a person.
EVIDENCE AND ANALYSIS
10I find that the appellant has failed to establish that the impoundment will result in exceptional hardship and her appeal under s. 50.2(3)(d) of the Act must fail as a result.
11The appellant’s evidence is that she is self-employed as a roofer. She has a trailer which she uses to carry her tools and supplies to job sites and she uses the impounded vehicle to pull the trailer. The appellant’s jobs vary in terms of time and equipment required. Some jobs are small ones involving repairs only and others involve the removal and replacement of an entire roof. According to the appellant, she has been unable to complete most of her roofing jobs while her vehicle was impounded and therefore is unable to earn income.
12The appellant testified that she had three roofing contracts that she could have completed during the impound period which she has been unable to complete and which would have earned the appellant net profit of $8,000 in total. Each of those jobs would have taken about a week to complete. She also testified that she missed the opportunity to complete five smaller repair jobs because her vehicle was impounded. Repair jobs usually take a day or less to complete. The appellant stated that, once the impound period is over, she can resume her work as a roofer and will be able to complete the jobs that she was unable to complete as the result of the impoundment.
13The appellant testified that, in order to continue working she rented a cargo van from U-Haul for two weeks, for which she paid $2,000. However, she was only able to complete one small repair job using that van because it was not adequate to handle large roofing jobs. She said that the cargo van cannot carry the large ladders she uses for roofing, and she cannot load the old shingles into the van for disposal because doing so would cause damage to the van. The appellant said that, in order to rent a vehicle suitable for roofing, it would cost $700 - $800 a week and would require her to either provide the rental company with a credit card number, which she does not have, or a large damage deposit, which she cannot afford. She also alleged that renting a vehicle was not financially feasible for her.
14I do not accept the appellant’s evidence with respect to her inability to find alternatives to the impounded vehicle. Instead of renting a vehicle adequate for roofing, she rented a cargo van which she says was not adequate for roofing, cost more money than a suitable vehicle, and used it for only one day of working in the two weeks it was in her possession.
15I do not accept the appellant’s evidence. The appellant’s claim that she lost jobs because she could not afford to pay $700-$800 a week for a truck that would allow her to complete the jobs, is not consistent with her decision to rent a cargo van for $2,000 for two weeks and her use of that van for work on one day.
16In addition, although the appellant said that she could have asked her parents to use their credit card so that she could rent a suitable vehicle, she says that she did not want to do that because she would be embarrassed and did not want her parents to think she could not make a living on her own. I find that renting a vehicle using her parents’ credit card, or at least asking for permission to do so, is a reasonable alternative to the impounded vehicle. That the appellant decided to avoid embarrassment by electing not to avail herself of this option does not mean that there was no alternative or that the alternative was unreasonable.
17Finally, the appellant alleged that it was not financially feasible to rent a vehicle for work during the impoundment period. The appellant presented no evidence to support her allegation that it would cost $700 - $800 per week to rent an appropriate vehicle. However, accepting this to be the case, she would have had to pay $4,200 - $5,600 to rent an adequate vehicle for the entire impoundment period. During that time, the appellant says she would have earned a profit of $8,000 from the three large jobs she had booked and would have earned some money from the smaller repair jobs as well. I also note that the appellant said the larger jobs only required one week to complete and she did not have to incur the expense of renting a vehicle for the entire 45-day impoundment period. The appellant’s evidence demonstrates that she would have been better off financially if she rented the appropriate vehicle and continued to work during the impoundment period.
18I find that the appellant failed to demonstrate that she did not have a reasonable alternative to the impounded vehicle available to her with respect to her self-employment as a roofer.
19The appellant alleges that, due to the impoundment she is unable to take her children to meet their father when he is entitled to access. Prior to the impoundment, the transfer of the children would occur at the police station, but the father is now coming to the appellant’s house to pick up the children. This makes the appellant uncomfortable and she says that she is concerned that he will enter her house without her permission. The appellant says that she could take them to the police station using public transportation, but she does not want to have to tell the father why she is taking the bus rather than driving. She agrees that there is no other reason that she could not use public transportation for this purpose. I find that the appellant’s stated reason for not taking public transportation is unreasonable and I find that public transportation is a reasonable alternative to the impounded vehicle for this activity.
20With respect to groceries, the appellant has been using an online grocery delivery service. She admits that she could use public transportation for this purpose but would prefer not to use the bus. She has also used ride-sharing services and taxis but states that this is financially difficult for her. I find that public transportation, ride-sharing services, taxis, and grocery delivery services are all reasonable alternatives to the impounded vehicle for this purpose.
21The appellant raised a number of peripheral hardships she is experiencing during the impoundment period including: the financial impact the impoundment is having on her former employees, who she says are now committing criminal acts in order to replace the income she was providing; her inability to support local charities; the impact on her local suppliers; and the decreased chance she has of winning the 2021 community platinum award as she had in 2020. The appellant did not present evidence with respect to these allegations and I am not satisfied that the appellant has proven that they constitute hardship or that there is no reasonable alternative which would have mitigated the impact of the impoundment with respect to these issues.
22The appellant alleges that the payment of the costs of towing and impounding the vehicle may cause her to experience significant hardship. I am sympathetic to the appellant’s situation, but this is not a factor the Tribunal may consider in determining whether the impoundment has caused exceptional hardship. Under s. 10(3) of the Regulation, financial or economic loss to a person can only be considered if certain conditions are met, the first of which is that there is no alternative to the impounded vehicle. Since the appellant had reasonable alternatives to the impounded vehicle, financial hardship cannot be considered.
23Based on the above, I conclude that the appellant has failed to show that there is no reasonable alternative to the impounded vehicle, as defined in the Act, available to her.
24Given that the appellant has failed to show that there was no alternative to the impounded vehicle available to her, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail.
ORDER
25For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
_______________________
Colin Osterberg, Member
RELEASED: January 24, 2022