Rita Depestel v. Registrar of Motor Vehicles, 2023 CanLII 12992

Date: 2023-02-14

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:

Rita Depestel

Appellant

And And and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Rita Depestel, Self-represented

For the Respondent: Leila Pereira, Agent

Date of Teleconference Hearing:

January 25, 2023

Overview

1Ms Rita De Pestel (“appellant”) appeals the impoundment of her 2018 Jeep (“vehicle”).

2The vehicle was impounded on December 1, 2022, when police discovered it being driven by a driver whose licence was subject to a condition prohibiting him from driving a vehicle unless the vehicle is equipped with an ignition interlock device. The vehicle was not equipped with an ignition interlock device, and it was impounded for 45 days as required under the Highway Traffic Act (“Act”).

1The appellant’s sole ground of appeal is that the impoundment will result in exceptional hardship.

3For the reasons set out below, I conclude that the impoundment will not result in exceptional hardship as that term is used and limited by the Act and regulations, and I have therefore confirmed the impoundment.

THE LAW

4Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person in violation of a condition that prohibits the driver from operating a vehicle unless the vehicle is equipped with an ignition interlock device.

5Under s. 50.2(1) and (5) of the Act, the 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.

6Section 50.2(3) of the 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.

7A regulation made under the Act (O. Reg. 631/98 (“regulation”)) sets out the factors that the Tribunal is required to consider in determining whether an impoundment will result in exceptional hardship.

8Section 10 of the 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.

9If 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.

10The regulation also states the Tribunal shall not consider financial loss in determining exceptional hardship unless the owner demonstrates that there is no alternative to the impounded vehicle and the loss will be immediate, significant, and lasting.

APPELLANT’S CIRCUMSTANCES

11The appellant is 74 years old and lives in a rural area with no public transportation. She resides with, and currently supports, her son who is not employed and has little income.

12The appellant receives a modest pension income as well as OAS and CPP benefits. However, according to the appellant, that income is insufficient and to make ends meet, she is employed part-time at a Walmart located in nearby Simcoe, Ontario, a 20–30-minute drive from her home.

13The appellant testified that the impoundment has caused her exceptional hardship. The impounded vehicle was her household’s only vehicle and the impoundment left her with no transportation to get to work, to run household errands, or attend medical/health care appointments.

14Her main concern was getting to work. She looked into the cost of taking a taxi to work and back ($180) or renting a vehicle for the duration of the impoundment ($3,000), but both options were financially out of her reach. She asked her neighbour whether he could drive her to work, but the neighbor has glaucoma and cannot drive after dark when the appellant would be returning home.

15The appellant’s brother-in law and sister live close to the Walmart and the brother-in law (who is 85 years old) has sometimes driven her to work and back home. However, he also cannot drive at night and the appellant has occasionally stayed at their house after a late shift at Walmart to avoid driving home in the dark. At one point she stayed at their house for a 6-day period to allow her to attend work. According to the appellant, this arrangement has greatly inconvenienced her brother-in-law and sister, and the impoundment has been difficult for them as well as the appellant.

16The appellant also states that the impoundment has resulted in financial hardship. The appellant’s income is modest, and she is supporting her son. She works at the Walmart to make ends meet. She has had to sell her late husband’s jewellery to pay her on-going bills. She states that her property taxes are in arrears and her landline and internet have been cancelled. According to the appellant, in her financial circumstances, the cost of the impoundment (approximately $3,000) is prohibitive and will contribute to the exceptional hardship caused by the impoundment.

ANALYSIS

17In my view, the appellant has not met the onus of establishing that the impoundment will result in “exceptional hardship” as that term is used and limited in the Act and regulation.

18According 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.

19In this case, the appellant has found an alternative to the impounded vehicle for the purposes of getting to work - her main concern. With the kind help of her sister and brother-in-law, the appellant has been able to attend work. According to her, she has not missed any shifts due to the impoundment. She obtains groceries and household items at the Walmart where she works, and she has been able to transport them back home with the help of her brother-in-law.

20I have no doubt that this arrangement has been disruptive and inconvenient for all concerned but the regulation specifically precludes me from considering inconvenience when determining whether an impoundment will result in exceptional hardship.

21The regulation also requires that I consider whether the impoundment will result in a threat to the health and safety of anyone normally transported by the vehicle. In this case there is no allegation that the impoundment has or will result in any medical emergency, missed medical/health appointments, or an inability to obtain medications or medical/health services.

22The nature of the hardship alleged by the appellant is primarily financial – the appellant argues that in her modest financial circumstances, the cost of the impoundment is prohibitive and will result in exceptional financial hardship.

23However, as noted above, in determining whether the impoundment will result in “exceptional hardship”, the regulation prohibits me from considering financial loss if there is an alternative available to the impounded vehicle. In this case I have found that there is an alternative and I am therefore precluded from considering the appellant’s financial loss in determining whether exceptional hardship will result from the impoundment.

24In summary, 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. I therefore confirm the impoundment.

ORDER

25Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.