Licence Appeal Tribunal File Number: 15014/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 pursuant to section 55.1 of the Act.

Between:

Christine Went

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Christine Went, Appellant

For the Respondent:

Andrew Sookhoo, Agent for the Registrar

Heard by Teleconference:

July 18, 2023

OVERVIEW

1Christine Went (the “appellant”) appeals the impoundment of her 2020 Honda UCL on June 22, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, her spouse was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

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

ISSUES

3The issue in dispute is:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the HTA and confirm the impoundment.

ANALYSIS

5The appellant’s vehicle was impounded pursuant to s. 55.1(1) 1 of the HTA, because her spouse was driving the vehicle while his licence was suspended.

6The respondent presented unrefuted evidence that the spouse’s licence was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

7The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

8A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s. 50.2(3)(d), i.e., that the impoundment will result in exceptional hardship.

9For her appeal to succeed, the appellant must prove on a balance of probabilities that the impoundment will result in exceptional hardship.

The impoundment of the vehicle will not result in exceptional hardship.

10Section 10 of O. Reg. 631/98 (the “Regulation”) 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.

11Subsection 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.

12Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle.

13The appellant testified that she needs her vehicle back because she cannot afford the impoundment fees or the cost of taking taxis and Uber. Further, her job was a half an hour drive from her home which was difficult to get to by public transit. However, she did acknowledge that she has used public transit during the impoundment period to get to work but was late because it was not part of her normal routine. She submits that she recently lost her job as a result and requires her vehicle back so that she can look for new employment, attend interviews and get back on her feet financially. What I find lacking in this case was evidence from the appellant linking the loss of her of employment for being late for work due to the impoundment of the vehicle. Consequently, the appellant has failed to persuade me on a balance of probabilities that she lost her employment as a result.

14The appellant also testified that the impoundment has caused exceptional hardship because she has to look after her mother and father-in-law who are in their 80s. Her mother in-law recently had hip surgery and the appellant is responsible for driving her to and from her medical appointments and running errands. In addition, her spouse has a psychological condition, and she requires the vehicle to take him to medical appointments and counselling sessions. He has appointments every Tuesday and Thursday which he has missed. The applicant also confirmed that she does not have access to an alternative vehicle and does not have family and friends in the area to assist her with transportation. Of significance, although the above factors demonstrate that the appellant and her family members have been inconvenienced by the impounded vehicle, they are not relevant to whether there was an alternative to the impounded vehicle.

15During cross-examination, the applicant conceded that her in-laws have not missed any medical appointments as a result of the impoundment and have taken taxis. Further, they also have access to accessible transit to obtain groceries. She also confirmed that her spouse could access public transit and take taxis to attend his medical appointments. Moreover, she has been taking taxis and public transit to obtain groceries, but she says it takes too long, is inconvenient and she does not have the money to pay for these expenses.

16Although the impoundment of the appellant’s vehicle has caused stress and inconvenience, I find that she has alternatives to the impounded vehicle because she has access to other means of transportation such as public transit, Uber, and taxis. Despite the fact that public transit is inconvenient and there are expenses associated with the other options these are alternative means of transportation.

17While the appellants spouse has missed a few medical appointments, public transit and taxis are available to him to attend these appointments during the impoundment period. Moreover, her in-laws have access to accessible transit to obtain groceries and attend appointments. Further, the appellant has used public transit as an alternative means of transportation during the impoundment period.

18The appellant states that she needs the impounded vehicle for meeting her transportation needs and cannot afford the extra costs associated with renting, Uber, or Taxi. However, she has access to these services as alternatives to the impounded vehicle as well as public transit which is a more affordable option. As highlighted above, inconvenience is not a factor taken into consideration when determining whether the exceptional hardship test has been met.

19I am not satisfied that, the appellant has proven, on a balance of probabilities, that she is without alternatives to the impounded vehicle.

CONCLUSION

20I 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

21Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.