Date: 2022-06-08

Tribunal File Number: 14016/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

Between:

Susanna Desforges

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant: Susanna Desforges, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: May 27, 2022

REASONS FOR DECISION AND ORDER

background

1A teleconference hearing was held on May 27, 2022 to consider the appellant’s appeal of the impoundment of her 2014 Dodge (the “vehicle”) on April 20, 2022 for 45 days. At the time of impoundment of the vehicle, the appellant’s driving licence was suspended. The appellant was the driver of the vehicle.

2The appellant submits that the impoundment has resulted in exceptional hardship to her because she needs her vehicle so that her son and her brother can drive her to medical appointments, the pharmacy and to get groceries. The appellant also submits that her son and brother both depend on the vehicle and the payment of the impound fees will be a financial hardship for her.

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 with respect to the appellant’s son and brother if they are ordinarily transported in the impounded vehicle. Section 10(3)(d)(i) of the Regulation specifically excludes consideration of these factors for the appellant, as she was driving the vehicle while suspended.

11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may not consider whether the impoundment will result in inconvenience to any person.

12The appellant testified that she doesn’t walk well. Although the appellant testified that she needs the vehicle so that her son and her brother can drive her to her medical appointments, regular visits to her family doctor, the pharmacy and to get groceries, the appellant also said that she had not missed any appointments with her family doctor during the impoundment. During the first week of impoundment, she was able to take Uber rides to her dental appointments. The appellant said she is able to reschedule her other medical appointments to after the impoundment period. The appellant said someone drove her to her pharmacy where she picked up her medication and brought her back home. Although she usually goes grocery shopping with her son, during the impoundment she has used an on-line grocery delivery service which has delivered her groceries to her. A neighbour has given her a ride to buy cigarettes. When the appellant lost power at her home during a recent storm, she used Uber to take her to a hotel for a few days and return her to her home. During the impoundment period her son, who lives in another city, rented a vehicle and picked her up and took her to stay at his home for a few days.

13The appellant testified that neither her son or brother owns a vehicle and they share her vehicle. The appellant said that during the impoundment period the appellant’s brother has been walking and taking the bus. Her son has been able to take the bus to work and rent a vehicle when he needed to take a trip to another city.

14The appellant also testified that payment of the impound fees will be a financial hardship for her as she lives on pension income.

15Based on the appellant’s evidence, it appears that transportation during the impoundment period is inconvenient for her and likely also inconvenient her son and brother. However, inconvenience is not a factor which the I can take into consideration.

16I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period. To date the appellant has received rides from neighbours or acquaintances, Uber, and her son who lives in another city. The appellant has not missed any medical appointments with her family physician, has been able to attend or reschedule her dental and weight loss clinic appointments, has been given a ride to her pharmacy to obtain her medication, used Uber and used an on-line grocery service, albeit at a cost.

17According to the appellant’s testimony, her son and brother have arranged their own alternatives including walking and taking the bus. There is no evidence before me of the financial impact of the impoundment on the appellant’s son and brother.

18As 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

19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.