Desjardins v. Registrar of Motor Vehicles, 2023 CanLII 107293

An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Kellie Desjardins

Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

ADJUDICATOR:

Geoff Pollock, Vice Chair

APPEARANCES:

For the Appellant:

Kellie Desjardins, Self-represented

For the Respondent:

Andrew Sookhoo, Agent

Heard by teleconference:

September 5, 2023

BACKGROUND

1Kellie Desjardins (the "appellant") appeals the 45-day impoundment of her motor vehicle under section 55.1 of the Highway Traffic Act (the "Act").

2The appellant's vehicle was impounded on August 16, 2023, when the driver was found to be driving it while their licence was under suspension of the type prescribed by s. 55.1.

3The appellant appeals the impoundment on the ground that the impoundment will result in exceptional hardship as defined by the Act and Regulations.

ISSUE TO BE DETERMINED

4The issue to be determined is whether the impoundment will result in exceptional hardship pursuant to section 50.2(3)(d) of the Act.

RESULT

5For the reasons set out below, the impoundment of the vehicle is confirmed.

EVIDENCE AND ANALYSIS

6The respondent presented uncontested evidence which demonstrates that:

a. The appellant, along with her mother, Sherry Smith, is the registered owner of the impounded vehicle, a 2013 Honda.

b. On August 16, 2023, the police discovered the impounded vehicle was being driven by Stephen Niles.

c. Mr. Niles’ licence was under suspension for a prescribed criminal conviction at the time the motor vehicle was impounded.

d. Notwithstanding that Mr. Niles has never been licenced to drive an automobile in the Province of Ontario, he has 2 Criminal Code convictions, 8 provincial offences convictions, and has had his licence suspended on 6 separate occasions.

7The sole ground on which the appellant appeals the impoundment is that it will create exceptional hardship for her or someone ordinarily transported in the vehicle. There is a condition precedent to considering the exceptional hardship ground of appeal. Section 10 of O. Reg. 631/98 under the Act requires the Tribunal to consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that 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.

If the owner of the impounded vehicle does not satisfy the Tribunal that there is the lack of a reasonable alternative, then the ground of exceptional hardship cannot succeed.

8In her testimony, the appellant admitted that, while being without her vehicle has been “very inconvenient”, she has been able to find alternatives. The appellant lives in Ottawa and has access to public transportation. Her 9-year-old daughter’s school is within walking distance of her home. Her 14-year-old son takes public transit to and from school. The appellant works at a bar and by the time her work ceases, so too has public transit. She has been relying upon Uber to take her home, which costs $20-$40 per evening, though she would “prefer not to”. The other major problem caused by her vehicle being impounded, is taking her daughter to her competitive dance practices, which could take up to two hours each way. However, the appellant lives with her mother, who is retired. Her mother has another vehicle. Although her mother typically plays a round of golf on Mondays, it is not an unreasonable expectation that for the two Mondays remaining, that she would take her granddaughter to her dance practice. At any rate, missing two weeks of dance classes, whilst less than ideal and decidedly inconvenient, does not rise to exceptional hardship.

9Section 10(2)(a) of Reg 631/98 does not allow the Tribunal to consider whether the impoundment will result in inconvenience to a person.

10For the reason that the appellant has reasonable –albeit inconvenient— alternatives available to the impounded vehicle, her appeal must fail as a result. Therefore, I need not make determinations with respect to the remaining components of the exceptional hardship test.

ORDER

11For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.