Licence Appeal Tribunal File Number: 14947/MVIA

An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Ernesto Mateus Gonzalez Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

Panel: Laura Hodgson, Member

Appearances:

For the Appellant: E. Ashurov, Counsel

For the Respondent: L. Pereira, Agent

Place and date of hearing: By teleconference, June 15, 2023

REASONS FOR DECISION AND ORDER

Overview

1The appellant’s motor vehicle was detained and impounded on April 23, 2023, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to impound a motor vehicle if the driver’s licence is subject to an ignition interlock condition and the vehicle is not so equipped. The appellant was driving his vehicle, without an ignition interlock condition, while subject to this condition.

2The issue in dispute is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Act.

3For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle confirmed.

Evidence and Analysis

The Impoundment

4The Respondent established that the appellant is the registered owner of the impounded vehicle, a 2016 Mercedes Benz cargo van. On April 23, 2023, the police determined that the appellant, who was driving the vehicle, had a condition on his licence requiring his vehicle be equipped with ignition interlock. The vehicle was not so equipped.

5The appellant was convicted of impaired driving on September 1, 2021 and was sentenced to a fine and a 12 month driving prohibition. The appellant had an ignition interlock installed in his vehicle on December 1, 2021. As a result, the suspension period was reduced and the appellant was permitted to drive a vehicle subject to the ignition interlock condition.

6The appellant had the ignition interlock equipment removed from his vehicle on February 7, 2022. He testified that it was expensive and was inaccurately issuing warning alarms.

7According to the appellant, he renewed his licence on May 2, 2023, and at that time believed he could drive without any conditions. He acknowledged that the ignition interlock condition is stipulated on his new license.

Exceptional Hardship

8The test for exceptional hardship is set out in O. Reg. 631/98 (the Regulation), made under the Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.

9In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss. This includes using another vehicle and making arrangements to do without a vehicle. If the owner fails to demonstrate the lack of an alternative to the impounded vehicle, then this ground of appeal cannot succeed.

10Sections 10(2) and 10(3) of the Regulation set out factors that may or may not be considered by the Tribunal in certain circumstances. The Tribunal cannot consider “inconvenience to any person” (ss. 10(2)(a) and (3)).

11The appellant testified that he requires the impounded vehicle for his work in construction. He is a drywall subcontractor and requires this specific vehicle to transport his equipment and materials. His adult son testified that he works for his father, the appellant, and without the vehicle they are unable to work. The appellant’s son noted that they work throughout the GTA and currently have a job in Scarborough and will lose approximately $8,000.00 if they don’t complete it. The appellant’s son acknowledged that he owns a vehicle but testified that because it is new and small he doesn’t use it for work purposes.

12The respondent established that, in addition to the impounded vehicle, the appellant owns three other vehicles and two trailers. The appellant testified that these vehicles, one of which is a minivan, are used by other family members and are not appropriate for his work equipment. The appellant and his son acknowledged that they have not inquired into periodically renting a larger vehicle because, in their view, it would be too expensive. The appellant testified that he has significant debt and minimal savings. His son testified that he has car payments for his new vehicle. The appellant’s wife works part time and his two adult daughters who live with him, are also employed.

13I find that the appellant has not established, on a balance of probabilities, that he does not have an alternative to his impounded vehicle as set out in s. 10(4) of the Regulation. I appreciate that the appellant uses the impounded vehicle for work purposes. While perhaps not ideal, the appellant has alternatives to this vehicle. He owns three other vehicles including a mini van. Additionally, he owns two trailers. Further, the appellant did not establish that renting a vehicle, even periodically, for the transportation of his work materials, was not an alternative. While both he and his son testified that a rental would be expensive, this is an expense that would offset some of the losses the applicant indicates that he is incurring as a result of the vehicle impoundment.

ORDER

14The Tribunal confirms the impoundment of the appellant’s motor vehicle.

Licence Appeal Tribunal

Laura Hodgson, Member