Licence Appeal Tribunal File Number: 14728/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 licence suspended.
Between:
Joshua W. Visser
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Bruce Stanton
APPEARANCES:
For the Appellant: Joshua William Visser, Appellant
For the Respondent: Leila Pereira, Representative
Heard by Teleconference: April 5, 2023
OVERVIEW
1Joshua Visser, the appellant, appeals from the impoundment of his 2019 Dodge Ram pickup truck, on March 16, 2023, for 45 days.
2The appellant appeals on the ground that the impoundment will result in exceptional hardship because he needs his vehicle for work, transporting his children to/from school and medical appointments, and for acquiring needs for the home.
ISSUES
[3] The issue in dispute is/are:
- Will the impoundment of the appellant’s vehicle result in exceptional hardship?
RESULT
4I find the impoundment will not result in exceptional hardship and I therefore confirm the impoundment.
ANALYSIS
1The respondent presented uncontested evidence which demonstrates that the appellant was driving his vehicle on March 16, 2023 when it was detained for impoundment. His licence was then under suspension for a prescribed criminal code conviction at the time, and therefore, pursuant to subsection 55.1(1)(3) the Highway Traffic Act (“HTA”), the vehicle was lawfully impounded.
2The owner of a vehicle which as been impounded in accordance with s. 55.1 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.
3A vehicle owner may only appeal a vehicle impoundment on one of the five grounds provided in subsection 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.
4The 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?
5I find the impoundment will not result in exceptional hardship.
6In considering whether a vehicle impoundment will result 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 the owner has alternatives to the impounded vehicle.
7Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, 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 him, may I consider other factors and criteria in the Regulation, that define the exceptional hardship test.
Does the appellant have alternatives to the impounded vehicle?
8I find the appellant has alternatives and has not considered and inquired into other reasonable options to the impounded vehicle.
9The appellant testified that the impounded vehicle is his family’s only vehicle. His truck is needed every workday to get himself, his co-workers, tools and equipment to various job sites in the Hamilton/Oakville/St. Catharines region. The appellant, who works as a pool installation manager, relies on a letter of support from his employer, Platinum Pools.
10The appellant reported that their two children, five and seven-years-old, rely on the family vehicle to get to and from school, approximately a 25-minute walk from home. They live just inside the zone beyond which school bus service is provided. No public transit is available. The walk to school has sidewalks only half of the distance and the route would necessitate walking alongside a busy service road. The appellant submitted that they feel it is safer to drive the children to and from school and extracurricular activities.
11It being their only vehicle, they also rely on it to purchase household needs and attend medical appointments. Their son requires attending bi-weekly medical appointments.
12Since the impoundment March 16th, the appellant has missed some days of work but has suffered no loss of salary. He testified that he’s concerned that continued lack of a truck for work will put his job in jeopardy. The letter from Platinum Pools asserts the appellant would be difficult to replace and the impoundment of his pickup truck is causing the employer hardship.
13The appellant reported that their children have missed some school and extracurricular activities due the impoundment. They have have tried to make arrangements for medical appointments and have not always been able to meet these obligations. The appellant reports this is having a negative psychological impact on the children and they are not managing well without their vehicle.
14For alternatives to the family’s transportation needs, the appellant submitted that there are no reliable taxi services in his hometown of Grimsby and no public transit. Family members of the appellant and his spouse live more than 30 minutes away and do not offer a reasonable alternative their transportation needs. The appellant provided no evidence of what alternatives the family has been using for transportation since the impoundment. He reports they are relying on take-out/delivery meals instead of groceries and that this is becoming expensive.
15The appellant’s licence is suspended. He reports that his spouse and co-workers had, until the impoundment, been sharing the driving duties using their family truck since January 5, 2023 when he was caught driving while impaired. Alternatives to the impounded truck would therefore require the appellant’s spouse and co-workers’ to continue in this service.
16The appellant testified that he can’t rent or borrow a truck due to his licence status. However, he provided no evidence of any inquiry or consideration of his spouse, co-workers, or employer renting or borrowing a vehicle for the period of the impoundment.
17Although the appellant reports the lack of a family vehicle has been disruptive, inconvenient, and a financial hardship, he reports to be managing with alternatives. The children are still attending school and meeting medical appointments. He has suffered no loss of employment income and has not exhausted other reasonable options to rent or borrow a vehicle. As the appellant has alternatives to the impounded vehicle, I cannot consider other criteria of the exceptional hardship test such as financial hardship or the health and safety of another person.
18I find the appellant has not met his burden to demonstrate that he has inquired into and considered every reasonable option to borrow or rent an alternative vehicle or make other arrangements during the period of the impound, as s. 10(4) of the Regulation requires him to do. Accordingly, I find the impoundment will not result in exceptional hardship.
CONCLUSION
19I find the appellant has not proven 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.
LICENCE APPEAL TRIBUNAL
__________________________
Bruce Stanton, Adjudicator
Released: April 13, 2023