Licence Appeal Tribunal File Number: 15361/MVIA

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

Between:

Jessica Ann Dueck

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Jessica Ann Dueck

For the Respondent:

Leila Pereira, Representative

HEARD: November 16, 2023

OVERVIEW

1The appellant, Jessica Ann Dueck, appeals from the 45-day impoundment of a 2016 Nissan 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 November 2, 2023. At the time of the impoundment, the appellant’s then partner, Bradley Peter Wilson, was driving the vehicle while his licence was suspended for a Criminal Code conviction.

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

ISSUES

3The issue in dispute is:

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 2016 Nissan vehicle (the “vehicle”);

ii. on November 2, 2023, the police discovered the impounded vehicle being driven by Bradley Peter Wilson (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:

[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.

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. Section 10(2)(a) of the Regulation prohibits this Tribunal from ever considering 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 and her father has driven her to her place of employment about four times and picked her up and driven her home three times. On another occasion, a co-worker drove her home after her work ended. She testified that she is able to take a bus to work but not on the way home as she gets off of work too late to take public transportation, and thus, she would need to get a ride from someone or take a taxi home. The appellant testified that she works as a server in a hotel restaurant located across town. Her employer is aware of the situation and has accommodated her by reducing her work schedule. She is fearful she may lose her employment or make less money resulting in difficulties paying her mortgage if she cannot attend work regularly. Normally, she works 4 to 5 days a week but, since the impoundment, she has been working 1 to 2 days a week.

12The appellant testified that, since the impoundment, her father has also driven her children, ages 6 and 13, to school and back home. She testified that her father is 70 years old and is struggling to assist with her transportation needs. The school is located about a 10 minute drive or 45 minute walk away. They attend a private school and school busing is not available to them. She has not looked into taking public transportation to take them to school. While her father is assisting with driving the children to and from school when able, they have nonetheless missed 5 days of school. They are supported by the school by being allowed to take their work home and continue learning when unable to attend.

13I find that the evidence before the Tribunal establishes that there are alternatives to the impounded vehicle. I find that the evidence establishes that, since the impoundment, the appellant has relied upon her father for her transportation needs and has even availed herself of a taxi. She has gotten a ride from a co-worker and has access to public transportation. She has also ordered her groceries online and had them delivered to her home although she believes this is more costly then attending a grocery store. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

14Under 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.

15Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

16On 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.