Licence Appeal Tribunal File Number: 14966/MVIA

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

Between:

Norma Jean White

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Norma Jean White

For the Respondent:

Andrew Sookhoo, Representative

HEARD: June 27, 2023

OVERVIEW

1The appellant, Norma Jean White, appeals from the 45-day impoundment of a 2003 Volkswagen Passat motor vehicle (the "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 May 25, 2023. At the time of the impoundment, her grandson Drew James Wale was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant appeals on the grounds that the impoundment will cause 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 appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The Registrar presented evidence, which satisfies me that:

i. the appellant is the registered owner of the impounded vehicle, a 2003 Volkswagen Passat;

ii. on May 25, 2023, the police discovered the impounded vehicle being driven by Drew James Wale; and

iii. Mr. Wale was driving the vehicle while his driving privileges were under suspension resulting from a prescribed 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 as it is defined in the Act and regulations. 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 testified that her husband has access to his diesel work truck and that, since the impoundment, she has been using the work vehicle to attend to her daily errands such as picking up prescriptions. The appellant has also driven the work vehicle to attend medical appointments. Her husband has also driven the work vehicle to the local variety store to obtain needed items. The appellant testified that while she has driven the work vehicle since the impoundment, she finds that it is uncomfortable and it smells. She does not like driving the work vehicle.

12The appellant further testified that, since the impoundment, she has had her groceries delivered to her by Foodland and has also gotten a ride from her neighbour to attend for grocery shopping.

13The appellant's daughter, Michelle Lee White, testified that both her parents are over the age of 75 years and they need the impounded vehicle for their daily tasks. She testified that while there are taxis available to her parents, it would be expensive as they live in a rural area. She testified that, since the impoundment, she has taken her father to two medical appointments.

14I find the evidence before the Tribunal establishes that there are alternatives available to the appellant that she has used since the impoundment. She has used her husband's work vehicle to complete her daily tasks including to pick up prescriptions and to attend medical appointments. Her daughter has also driven her father to his medical appointments. Her neighbour has taken her to the grocery store to obtain groceries. She has also had her groceries delivered by the grocery store. Her husband has also used the work vehicle to go to the local variety store to pick up any needed items.

15While using the work vehicle or getting rides from her daughter or a neighbour, may not be convenient or comfortable, nonetheless, I find these alternative forms of transportation have been used. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

16Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the 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.

17Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

18On 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.

Released: July 12, 2023

__________________________

Rupinder Hans

Adjudicator