Tribunal File Number: 14588/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:
Celes Brooks
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: No one attended
For the Respondent: Leila Pereira, Agent
Heard by teleconference: March 3, 2023
REASONS FOR DECISION AND ORDER
background
1A teleconference hearing was held on March 3, 2023 to consider the appeal of Celes Brooks (the “appellant”) of the impoundment of her 2016 Honda (the “vehicle”) on January 31, 2023 for 45 days.
2The appellant submits in her Notice of Appeal that the impoundment will result in exceptional hardship to her because she needs her vehicle to take a family member to medical appointments and for work purposes.
ISSUE
3The issue to be determined is whether the impoundment will result in exceptional hardship.
result
4I confirm the impoundment of the appellant’s vehicle. I find that the appellant brought forward no evidence to support a finding that the impoundment will result 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.
Appellant Failed to Attend the Hearing and Submitted No Evidence
12The appellant bears the onus to establish that the impoundment will result in exceptional hardship. I find that the appellant has failed to meet this onus.
13This hearing was originally scheduled to be heard on February 24, 2023. At that time the appellant attended the hearing, requested an adjournment of the hearing, and agreed to the new hearing date of March 3, 2023. The appellant’s adjournment request was granted. The hearing was rescheduled to March 3, 2023.
14The appellant failed to attend the hearing on March 3, 2023 and submitted no evidence in support of her appeal.
15On March 3, 2023, I waited 30 minutes for the appellant to attend the hearing. During the 30 minutes, the Tribunal staff called the appellant’s phone number and left her a voicemail, sent the appellant an email and later called her on the telephone again. The appellant did not respond to any of these attempts to contact her. Further, the appellant failed to file any documentary evidence with the Tribunal prior to the hearing. No one contacted the Tribunal on the appellant’s behalf and no communication was received that the appellant would not be attending the hearing.
16The respondent submitted that the hearing should proceed in the absence of the appellant who has already been granted an adjournment once, agreed to this new date for the hearing and yet failed to attend.
17I accepted the respondent’s submissions and the hearing proceeded in the absence of the appellant.
18I was left with no evidence to support the appellant’s appeal.
The impoundment will not result in exceptional hardship
19Based on the respondent’s submissions at the hearing, I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period.
20It is clear from the documents filed by the respondent that the appellant has alternatives available to her. In addition to the impounded vehicle, the appellant owns several vehicles solely or jointly with a family member.
21Despite the fact that the onus is on the appellant to establish her ground of appeal, specifically exceptional hardship, the appellant did not attend the hearing or provide any evidence for this hearing to support the statements in her Notice of Appeal.
22As 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
23Pursuant 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: March 06, 2023