Anandarajan Selvathampu v. Registrar of Motor Vehicles, 2022 CanLII 79007

Licence Appeal Tribunal

Date: 2022-08-22

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:

Anandarajan Selvathampu

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Anandarajan Selvathampu, Self-Represented

For the Respondent: Leila Pereira, Agent

Date of Hearing: August 9th, 2022

Overview

1Mr. Anandarajan Selvathampu ("appellant") appeals the impoundment of his 2008 BMW ("vehicle").

2The vehicle was impounded on June 29, 2022, when it was discovered by police being driven by a driver whose licence was under suspension as a result of a Criminal Code conviction for dangerous driving.

3The appellant appeals the impoundment on the sole ground that it will result in exceptional hardship.

4For the reasons set out below, I conclude that the impoundment will not result in "exceptional hardship" within the meaning of that term under the Act and regulations and I confirm the impoundment of the appellant's vehicle.

THE LAW

5Under the Act, a police officer is required to impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose licence was under suspension as a result of certain Criminal Code convictions including dangerous driving.¹

6The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

7The Act allows only five grounds on which an owner may appeal, and they include the ground upon which the appellant relies in this case - "that the impoundment will result in exceptional hardship." The onus is on the appellant to establish the facts that support that ground of appeal on a balance of probabilities.

8A regulation made under the Act (O. Reg. 631/98 ("Regulation")), sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.

9Section 10 of that Regulation provides that the Tribunal must consider whether an alternative to the impounded vehicle is available. The onus is on the appellant to establish that there is no viable alternative. To show that no alternative 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.

10If no alternative to the impounded vehicle is available, 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.

11The regulation specifically states that the Tribunal shall not consider inconvenience to any person when considering whether an impoundment will result exceptional hardship.

APPELLANT'S CIRCUMSTANCES

12The appellant is 68 years old and lives is Stouffville, Ontario with his spouse and two adult children. According to the appellant, his area is not served well by public transportation and a vehicle is needed for most things such as getting groceries, running household errands, and attending various medical, dental and other appointments.

13The appellant does not drive at the moment – his licence is presently under suspension for medical reasons. However, the other three adult members of the household are all licenced to drive and sometimes use the impounded vehicle.

14There are two vehicles registered in the appellant's name – the impounded vehicle and another 2008 BMW. The other vehicle is plated, operational and is presently being used by the appellant's family.

15The appellant's son works from home and does not require a vehicle to attend work. The appellant's daughter works in downtown Toronto. However, the appellant's home is within walking distance of a GO station and the daughter uses the GO train to get to work.

16The appellant' spouse works full time in Richmond Hill and cannot realistically get from Stouffville to her work in Richmond Hill by public transportation. However, she has been able to attend work during the impound period by car pooling.

17The appellant testified that it is difficult for the family members to manage all of their responsibilities and commitments with just one car. The appellant's spouse has a medical condition that requires visits to her doctor and other specialists in the GTA. According to the appellant, it is sometimes difficult for her to attend, and she has missed some appointments because of lack of transportation. The appellant also has a medical condition and testified that he has missed one appointment because of the impoundment.

ANALYSIS

18In my view, the appellant has not met the onus of establishing that the impoundment will result in "exceptional hardship" as that term is used in the Act and Regulation.

19According to the Regulation, in determining whether the impoundment will result in "exceptional hardship" the Tribunal must first consider whether there is any alternative to the impounded vehicle. In order to establish that there is no alternative, the appellant must demonstrate that every other reasonable option has been considered.

20In this case, there is an alternative to the impounded vehicle. The appellant owns another operational vehicle which is currently being used by the licenced members of the appellant's family. That vehicle, together with use of public transportation and car pooling, appears to offer a viable alternative to the impounded vehicle. The family members who work outside of the home have been able to continue to get to work. Although the appellant apparently missed one health care appointment and his spouse had missed others, there was no evidence upon which I could conclude that the impoundment has or will result in a threat to the health and safety of the appellant or anyone normally transported by the vehicle.

21I acknowledge that for a family of four adults, each with their own employment and other responsibilities and living in an area lightly served by public transportation, having only one vehicle is challenging. However, based on the evidence presented, it appears that the family's transportation needs can be adequately met through a combination of use of the second vehicle, public transportation, and car pooling. No doubt such arrangements require some planning and flexibility and will likely result in inconvenience for all concerned. However, I am specifically prohibited from considering inconvenience to any person when determining whether the impoundment will result in exceptional hardship.

22In my view, the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is defined and limited by the Act and Regulation. I therefore confirm the impoundment.

ORDER

23Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant's vehicle.

Footnotes

1. 1Criminal Code, s. 320.13