Middleton v. Registrar of Motor Vehicles, 2023 CanLII 110930

Licence Appeal Tribunal File Number: 15319/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Michelle M. Middleton

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Michelle M. Middleton

For the Respondent: Sadia Ashraf, Representative Ian Sookram, Representative

HEARD: November 1, 2023

OVERVIEW

1The appellant, Michelle M. Middleton, appeals from the 45-day impoundment of a 2006 Ford pickup motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on October 10, 2023. At the time of the impoundment, the appellant's son, Patrick Middleton, was driving the vehicle while his licence was suspended.

2The appellant appeals on the grounds that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2006 Ford vehicle (the "vehicle");

ii. on October 10, 2023, the police discovered the impounded vehicle being driven by Patrick Middleton (the "driver"); and

iii. the licence of the driver was under suspension for a Criminal Code conviction at the time of the impoundment.

Whether the impoundment will result in exceptional hardship

6The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find that the appellant has not met her burden.

7Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

8Subsection 10(1) requires the Tribunal to first 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:

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 owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

10If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11I find the appellant has alternative means of transportation available to her. The appellant testified that since the impoundment, she has used a taxi on one occasion to take her three-year-old granddaughter to her therapy appointment. She testified that her granddaughter has special needs and has weekly therapy appointments. Since the impoundment, she has missed several appointments. The appellant is the legal guardian of her granddaughter who resides with her. There are no other residents in the household. She testified that taking a taxi was expensive and she cannot continue to take taxis to her granddaughter's or her own medical appointments.

12In addition, since the impoundment of the vehicle, the appellant's neighbour has driven her on two occasions. The neighbour drove the appellant and her granddaughter to the hospital for her granddaughter's dental appointment. On another occasion, the neighbour drove the appellant and her granddaughter to her granddaughter's ear hearing appointment. I find that the appellant's neighbour has provided an alternative means of transportation to her and her granddaughter during the impoundment period.

13The appellant further testified that she could use public transportation to get to medical appointments and to complete essential tasks if needed. She testified that she does not have a bus pass but could get one. However, she testified that taking public transportation would be difficult and inconvenient with her granddaughter. Thus, the appellant has not used this means of transportation although it is available to her. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

14I find that the evidence before the Tribunal establishes that there are alternative means of transportation available to the appellant. I find that the evidence establishes that, since the impoundment, the appellant has relied upon her neighbour for her transportation needs and has even taken a taxi to complete her essential tasks. She has access to public transportation to attend her and her granddaughter's medical appointments. I find that alternative forms of transportation have been used.

15Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.

16Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

17On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant's vehicle is confirmed.