Mick Ross v. Registrar of Motor Vehicles, 2023 CanLII 7276

Date: 2023-01-31

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

Mick Ross

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Kevin Lundy, Member

APPEARANCES:

For the Appellant: Mick Ross, Self-represented

For the Respondent: Leila Pereira, Agent Ian Sookram (Observer)

Heard by Teleconference: January 30, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Mick Ross (the ‘appellant’) appeals the impoundment of his 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 January 1, 2023. At the time of the impoundment, the respondent alleged that the driver, Lakota Misquadis (‘L.M.’), was driving with a suspended licence. The appellant is the registered owner of the impounded vehicle, a 2012 Mitsubishi Lancer. A Notice of Impoundment was issued for a period of 45 days. The vehicle is scheduled to be released from impoundment on February 15, 2023.

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

ISSUE TO BE DETERMINED

3The issue to be determined is whether the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.

PRELIMINARY ISSUE

5The respondent submitted evidence that the impounded vehicle is owned by both the appellant and a third party, Maria Damian (‘M.D.’). The appellant explained that M.D. is his former partner and that she resides at a separate address. While he and M.D. parted on friendly terms, he has not discussed the impoundment with her. Neither he nor the agent for the respondent were aware if M.D. had received notice of the hearing, though the agent for the respondent assumed that this was the case.

6However, as the appeal relates to exceptional hardship and there was no evidence submitted that M.D. uses the impounded vehicle or relies upon access to it, only Mr. Ross may reasonably rely upon this ground of appeal.

EVIDENCE AND ANALYSIS

7Section 10 of O. Reg. 631/98 under the Act (the ‘Regulation’) sets out the criteria and factors that the Licence Appeal Tribunal (the ‘Tribunal’) must consider in determining whether exceptional hardship will result from an impoundment.

8Subsection 10(1) of the Regulation requires the Tribunal to consider, first, 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.

9In the present case, the appellant resides in Kitchener with his mother in social housing and works a continental shift in Guelph from 6:30 p.m. to 5:00 a.m. The impounded vehicle is the only vehicle for the household and the appellant’s mother does not drive.

10The appellant has occasionally stayed the night before a shift at his father’s residence in Guelph. However, his father cannot reasonably drive him to or from work as he works full time on an entirely incompatible schedule. His father would be sleeping when the appellant leaves work. As well, his father has expressed some reticence to allowing the appellant to continue to stay at his home, prompting the appellant to take sick days and vacation to avoid further conflict on this issue. At the hearing, the appellant expressed considerable doubt that his father would lend him his own car to drive him to work and pick him up. Even putting aside the impracticality of such an arrangement given their incompatible work schedules, the appellant’s father has expressed impatience with the situation and would prefer that the appellant simply resolve the problem himself by retrieving his car from impound.

11As most of his family resides in Guelph or Thunder Bay, his other options for transportation are extremely limited. While he has a sister who resides in Toronto, another sister has no vehicle. While his brother works at the same job as him, he works on a shift opposite to the appellant and could not assist him with the commute. The appellant has no other friends or co-workers who can drive him to or from work.

12Because of the hours of his employment, no public transit is available for commuting between the two cities. While he has used Uber, drivers are frequently unavailable to drive him home from work given the early hour that his shifts end. He has also found this service extremely unreliable, in part because drivers have also refused to travel between the cities during inclement weather. On one occasion when he opted to stay overnight in Guelph, an Uber driver would only drive him partway to his father’s residence, compelling him to walk the remainder.

13The appellant’s employer is aware of the situation but has declined to provide any accommodation to assist him, suggesting instead that he use his vacation days. As of the date of the hearing, the appellant has missed five days of work, two days during the week following the impoundment and three more during the week preceding the hearing. He explained that he took these days off as he was unable to secure transportation to work due to the unavailability of ride sharing services or any other means of travel to and from Guelph.

14In light of all of the evidence, I find that the appellant has demonstrated on the balance of probabilities that there is no reasonable alternative to the impounded vehicle.

15As I have found that no alternative to the impounded motor vehicle is available, subsection 10(1) of the Regulation which requires me 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 subsection 10(3), if the appellant demonstrates 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.

16The appellant has resided with his mother for slightly more than a year, and she is being transferred to a one bedroom unit. There was no evidence presented on the immediacy of this change in circumstances. While he has been searching for his own residence, he has not been successful due to both financial constraints and a lack of available vacant units.

17While he has discussed the issue of compensation for the impound fees with L.M., the driver of the vehicle, she has no resources to assist him.

18Although the $25.00 to $30.00 cost of hiring Uber drivers has motivated him to stay with his father or take vacation days rather than incur this expense, he did not state that this expense was prohibitive, particularly as he has full-time employment.

19Although the appellant described some disruptions to his sleep while staying at his father’s residence, he has suffered no significant health concerns and has not missed any appointments that could have been impacted by the impoundment. There was also no evidence that the impoundment has impacted the health or safety of any other person. Lastly, as he has been able to use vacation and sick days to avoid missing work, he has not suffered any loss of employment or employment opportunities.

20Ultimately, I find that the appellant has not demonstrated that the impact of the impoundment has resulted in any immediate, significant or lasting financial or economic loss. As a result, I do not find that appellant has demonstrated exceptional hardship as a result of the impoundment.

ORDER

21For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.