Licence Appeal Tribunal File Number: 14753/MVIA

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

Between:

Joshua Forgues

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Joshua Forgues, Self-Represented

For the Respondent:

Leila Pereira, Representative

HEARD: April 11, 2023

OVERVIEW

1Joshua Forgues, the appellant, appeals from the 45-day impoundment of his 2020 Toyota Corolla 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 March 25, 2023. At the time of the impoundment, John Ernest Scott was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

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

ISSUES

3The issues in dispute are:

i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find 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 evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2020 Toyota Corolla (the "vehicle");

ii. on March 25, 2023, the police discovered the impounded vehicle being driven by John Ernest Scott (the "driver"); and

iii. Mr. Scott's was not licenced, was never issued a licenced, and was subject to a 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. I find that the appellant has not met his 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) of the Regulation, 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. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11The appellant testified that his common law partner is the primary driver of the vehicle. He, his partner and their six year old daughter reside in Toronto and his partner works in Hamilton. He testified that it is about a 70 kilometre commute for his partner to work each day and having a vehicle is crucial for her. Since the impoundment, she has rented a vehicle which she uses to drive to work and conduct her day to day activities. She intends to continue renting a vehicle if the vehicle remains impounded.

12The appellant's partner similarly testified that for the past about 15 days, she has been renting a vehicle to get to work and to complete any personal tasks, including taking her daughter to school. She has to return the vehicle shortly. She testified that she will have to find another rental vehicle if the impoundment is confirmed.

13The appellant also testified that there is another vehicle in the household, a 2020 Ford Ranger. He testified that he uses this vehicle for his work and it is full of his work tools and it is not conducive to driving other people around. He works five to seven days a week throughout the Greater Toronto Area as a subcontractor on contruction projects and home renovations. Since the date of the impoundment, he has not missed any days of work. Since the impoundment, their daughter is driven to and from school in the appellant's work vehicle or his partner's rental vehicle. She has not missed any days of school.

14The appellant testified that he has not missed any medical appointments since the impoundment. He testified that since the impoundment, his daughter had to be taken to the hospital for stomach pains. On that occasion, the appellant unloaded the tools and equipment in his work vehicle and put a booster seat in to take her to the hospital.

15I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his 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.

16In this case the appellant and his partner established that they have access to other forms of transportation, including the use of his second vehicle (a 2020 Ford Ranger), and a rental vehicle. The evidence establishes that the appellant's partner has been using a rental vehicle for the past 15 days to attend work and drop their daughter off to school. In addition, during a medical emergency related to their daughter, the appellant has been able to use his second vehicle. The appellant continues to use his second vehicle to attend work and complete personal tasks including grocery shopping.

17The testimony also established that another vehicle will be rented if the impoundment is confirmed.

18Although the impoundment has resulted in inconvenience and expense, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail.

ORDER

19On 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.

LICENCE APPEAL TRIBUNAL

__________________________

Rupinder Hans

Adjudicator