Hulya Cetinkaya v. Registrar of Motor Vehicles, 2023 CanLII 26936

Date: 2023-03-27

Licence Appeal Tribunal File Number: 14677/MVIA

In the matter of an 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:

Hulya Cetinkaya

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Hulya Cetinkaya, Self-represented

For the Respondent:

Leila Pereira, Representative

Heard by Teleconference:

March 22, 2023

OVERVIEW

1Hulya Cetinkaya, the appellant, appeals from the impoundment of her 2012 Buick Verano, on February 22, 2023, for 45 days.

2The appellant appeals on the ground that the impoundment will result in exceptional hardship because she needs the vehicle to get to work, to assist her son and co-workers to get to work, and to support family appointments and demands.

ISSUES

3The issue in dispute is:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship?

RESULT

4I find that the impoundment will not result in exceptional hardship, and therefore I confirm the impoundment.

ANALYSIS

5The owner of a vehicle which as been impounded in accordance with s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, under the provisions of s. 50.2, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

6A vehicle owner may only appeal a vehicle impoundment on any of the five grounds provided in s. 50.2(3) of the HTA. The appellant relies on s. 50.2(3)(d), i.e., that the impoundment will result in exceptional hardship.

7The appellant has the onus to prove on a balance of probabilities that the impoundment will result in exceptional hardship.

Issue 1: Will the impoundment of the vehicle result in exceptional hardship?

8I find that the impoundment will not result in exceptional hardship because the appellant has transportation alternatives available to her.

9In considering whether the impoundment results in exceptional hardship, I refer to section 10 of O. Reg. 631/98 (the “Regulation”) that sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the HTA. Subsection 10(1) compels the Tribunal to first consider whether no alternative to the impounded vehicle is available to the owner.

10Subsection 10(4) of the Regulation places the burden on the owner to demonstrate that there is no alternative, which includes considering and inquiring into every reasonable option such as using another vehicle and making arrangements to manage without any motor vehicle during the impound period. Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her may I consider other factors and criteria in the Regulation, that define the exceptional hardship test.

Does the appellant have an alternative to the impounded vehicle?

11I find that the appellant has alternatives to her impounded vehicle.

12The appellant testified that the impounded vehicle is the family’s only vehicle. She is employed full-time providing housekeeping services, five days per week, and she needs her vehicle to transport herself, and up to two co-workers, to and from homes and locations she is serving. The home cleaning service requires up to 17 minutes of driving time between locations, to 4 to 5 locations per day.

13The appellant lives with her husband and three children. Her husband is disabled and off work. She testified that the family needs her vehicle for daily requirements of shopping, pharmaceuticals, health appointments and helping her son get to and from work, three days per week.

14The appellant testified that she has been using taxi services and the help of neighbours for her transportation needs since her vehicle was impounded. She added that she uses these services to attend family appointments and shopping needs. Her son occasionally uses city transit to access employment.

15She submits that the cost of using taxis is adding up and represents a financial hardship, especially when added to a $2,700.00 fee to pick up her car from impoundment when the 45-day impoundment period ends.

16The appellant testified that her alternative arrangements are meeting her employment obligations, and those of her son and co-workers. She indicated she has not lost any workdays due to the impoundment.

17Since the appellant has alternatives to the impounded vehicle, as discussed above, I cannot consider other criteria and factors such as financial cost, in determining whether the impoundment will result in exceptional hardship.

18The applicant has not met her burden to demonstrate that no alternative to the impounded vehicle is available to her, as required by s. 10(4) of the Regulation. On that basis alone, the appeal must be dismissed, and the impoundment confirmed.

Conclusion

19I find the appellant has not established the impoundment will result in exceptional hardship under the provisions of s. 50(2)(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

20Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.