Tribunal File Number: 14211/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 for driving while suspended.
Between:
Lina Saleh
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Lina Saleh, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: September 1, 2022
REASONS FOR DECISION AND ORDER
background
1A teleconference hearing was held on September 1, 2022 to consider the appeal of Lina Saleh (the “appellant”) of the impoundment of her 2003 Honda (the “vehicle”) on July 23, 2022 for 45 days. The vehicle will be released from impoundment on September 6, 2022.
2The appellant submits that the impoundment has resulted in exceptional hardship to her because she relies on her vehicle to attend medical appointments, the impoundment will cause extreme financial hardship and practical hardship to attend the many medical appointments.
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 listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The appellant submitted an affidavit sworn August 3, 2022 with her Notice of Appeal in which she swears that she relies on the vehicle to attend medical appointments, as detailed in exhibit 4 to the affidavit, and that the impoundment “would cause extreme financial hardship and practical hardship to attend the many medical appointments without being able to drive the impounded vehicle.” Exhibit 4 lists five physiotherapy appointments that fall within the impound period and exhibit 4 also contains a copy of an application for accessible parking permit renewal for the appellant to Service Ontario signed February 23, 2021 by Dr. Greiner, the appellant’s physician.
13At the hearing the appellant testified that she had COVID from approximately the end of July, 2022 until approximately August 18, 2022 and this prevented her from attending her four of her physiotherapy appointments. The appellant confirmed she only missed one physiotherapy appointment on August 22, 2022. The appellant testified that she will be able to receive this treatment later as she has a series of ongoing appointments with her physiotherapist.
14The appellant testified that her husband, with whom she lives, owns a motor vehicle. During the impoundment period her husband has been able to provide transportation for grocery shopping.
15The appellant said that the person who was driving the vehicle when it was detained and impounded will pay for the impoundment fees.
16The appellant testified that the impoundment has been a source of huge stress for her.
17I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.
18Here, I find that the appellant has an alternative to the impounded vehicle available to her during the impoundment period, being the transportation provided by her husband and his vehicle. The appellant’s husband has used his vehicle to assist the appellant during the impoundment period by obtaining groceries, for example.
19As 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
20Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: September 19, 2022.