Date: 2022-09-20

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:

Gregory Stephens

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Gregory Stephens, Self-Represented

For the Respondent: Stephen Grootenboer, Agent

Date of Teleconference Hearing: September 13, 2022

Overview

1Mr. Gregory Stephens (“appellant”) appeals the impoundment of his 2019 Kia (“vehicle”). It was impounded on August 25, 2022, when police discovered the appellant driving the vehicle. His licence was under suspension due to a Criminal Code impaired driving conviction and the vehicle was impounded for 45 days as required under the Highway Traffic Act (“Act”).

2The appellant’s sole ground of appeal is that the impoundment will result in exceptional hardship.

1For 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

2Under 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 impaired driving.

3The 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.

4The Act allows only five grounds on which an owner may appeal, and they include the ground the appellant relies upon 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.

5A 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.

6Section 10 of that Regulation provides that the Tribunal must consider whether there is an alternative to the impounded vehicle. 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 reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.

7If 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.

8The Regulation states the Tribunal shall not consider inconvenience to any person and may not consider financial loss unless the owner demonstrates that there is no alternative to the impounded vehicle, the loss will be immediate, significant, and lasting, and the impact of the loss will be on a person other than the person whose driving while suspended resulted in the impoundment.

APPELLANT’S CIRCUMSTANCES

9The appellant states that the impoundment will result in exceptional hardship to him and his fiancé.

10They live in a rural location near Owen Sound where no public transportation is available. They both work outside of the home at separate jobs, and they require a reliable vehicle to get to work. The appellant works Thursday to Monday in Chatsworth, Ontario about a 15-minute drive away. His fiancé works Monday to Friday in Markdale, Ontario, about a 20-minute drive away in the opposite direction.

11According to the appellant, they earn a modest income and are financially struggling to manage a mortgage and other debt. They cannot afford to miss work or lose their employment. The impounded vehicle is the only reliable vehicle they own, and they rely on it to get to work.

12According to the appellant, the impoundment has restricted their ability to get to work and he has missed some shifts due to the impoundment. That loss of income, as well as the cost of the impoundment itself, represents a financial loss which, in the appellant’s modest financial circumstances, results in exceptional hardship.

ANALYSIS

13In 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.

14According 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.

15In this case, there is an alternative to the impounded vehicle. According to the appellant, during the first week of the impoundment, he missed some shifts while adjusting to the impoundment. However, his fiancé owns a plated and operating 2006 Chevrolet Impala. The appellant testified that the Impala is in poor mechanical condition and is unreliable, but I was provided with no factual details to support that.

16However, the evidence was that after the first week of the impoundment, the appellant and his fiancé have been able to get to their separate jobs using the Impala and with occasional assistance from friends or relatives. The appellant’s fiancé has not missed any work at all because of the impoundment. There was no evidence that the appellant and his fiancé have been unable to get groceries, run household errands, or attend medical/dental appointments. There was also no evidence to suggest that the impoundment has resulted in a threat to the health and safety of the appellant, or anyone else ordinarily transported by the impounded vehicle.

17I therefore conclude that the Impala, together with occasional assistance from friends/family, offers a viable alternative to the impounded vehicle.

18One of the appellant’s main concerns is the financial loss resulting from him missing some work initially and the cost of the impoundment itself. However, the Regulation specifically states that the Tribunal may only consider financial loss as exceptional hardship if there is no alternative to the impounded vehicle, the loss will be immediate, significant, and lasting, and the financial loss will be suffered by someone other than the suspended driver whose driving resulted in the impoundment.

19In this case, I conclude that there is a viable alternative, there was no evidence presented from which I could conclude that the appellant’s financial loss will be significant and lasting, and the financial loss will be apparently experienced by the appellant who is also the suspended driver. I am therefore precluded from considering the appellant’s financial loss in determining whether the impoundment will result in exceptional hardship.

20In conclusion, 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 and I therefore confirm the impoundment.

ORDER

21Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.