Licence Appeal Tribunal File Number: 14957/MVIA

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

Between:

Jolanda Dineen

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Jolanda Dineen, Self-Represented

For the Respondent:

Leila Pereira, Representative

Heard by Teleconference: June 21, 2023

OVERVIEW

1Jolanda Dineen, the appellant, appeals from the 45-day impoundment of her 2016 Dodge Journey 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 June 3, 2023. At the time of the impoundment, her spouse Shawn Andrews was driving the vehicle while subject to a suspension for a Criminal Code 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 Registrar presented uncontested evidence which establishes that:

i. the appellant is a registered owner of the impounded vehicle, a 2016 Dodge Journey (the “vehicle”);

ii. on June 3, 2023, the police discovered the impounded vehicle being driven by Shawn Andrews; and

iii. Mr. Andrews 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 her 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 submits that she requires the vehicle to take her children to their sporting commitments and medical appointments, her own medical appointments, and to obtain groceries.

12The appellant testified that she has five children, ages 8, 10, 13, 16 and 21. She testified that her three youngest children walk to school as their school is only a few blocks away from their home. She testified that three of the children are registered in sporting activities and she needs a car to drive them to their activities and to medical appointments. Her eldest child also uses the vehicle for her own needs. Since the impoundment, she has had to cancel dentist appointments for two of her children. The appellant testified that there have not been any medical emergencies since the impoundment and acknowledges that emergency services are available in her area.

13The appellant testified that she has not been working since the beginning of May 2023 and is unsure when she will be returning to work. At present, she needs the vehicle to attend her own medical and counselling appointments. The appellant’s spouse is employed and works in the construction field. She testified that he receives a ride to work and, since the impoundment, he has not missed any days of work.

14The appellant testified that, since the impoundment, she has been using her spouse’s employer’s vehicle, whenever it is available. On the day of the hearing, she had the vehicle for her own use as it was available. She has been using her spouse’s employer’s vehicle for grocery shopping, to take her children to their sporting activities, and to attend medical appointments. She testified that she has been contacting the employer to see if the vehicle is available, and if not, then she will contact her friend to see if she can borrow her vehicle.

15The appellant testified that she has used her friend’s vehicle to take her children to their sporting commitments. She has also borrowed her friend’s vehicle, or has gone with her friend, for grocery shopping and to pick up prescriptions. One of her children has also been getting a ride with another child’s parents to sporting activities.

16The Registrar submits that alternative means of transportation are available to the appellant as she has been utilizing her spouse’s employer’s vehicle and her friend’s vehicle to drive her children to their sports commitments and for grocery shopping/running errands. Her friend has also driven her, on occasion, to obtain groceries and prescriptions. Her children walk to school. Her husband gets a ride to work.

17I note that, since the impoundment, the appellant has used her spouse’s employer’s vehicle and her friend’s vehicle. She has used these two vehicles to complete her daily tasks including grocery shopping. In this case, the appellant established that she has access to other forms of transportation. While use of her spouse’s employer’s vehicle or her friend’s vehicle may not be convenient, nonetheless, I find that the appellant has used such alternative means of transportation to complete daily tasks.

18I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her 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.

19There is no doubt that the impoundment has resulted in inconvenience and expense for the appellant and her family, however, she has failed to prove exceptional hardship under the Act and her appeal must fail.

ORDER

20On 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.