Licence Appeal Tribunal File Number: 15107/MVIA

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

Between:

Erin Hunt

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Erin Hunt

For the Respondent: Leila Pereira, Representative

HEARD: August 23, 2023

OVERVIEW

1The appellant, Erin Hunt, appeals from the 45-day impoundment of a 2022 Honda Civic 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 July 28, 2023. At the time of the impoundment, Trevor Strickland was driving the vehicle while his licence was suspended.

2The appellant appeals on the ground 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 that 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 respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2022 Honda Civic (the “vehicle”);

ii. on July 28, 2023, the police discovered the impounded vehicle being driven by Trevor Strickland; and

iii. Mr. Strickland’s driver’s licence was under suspension for a Criminal Code conviction at the time it was impounded.

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.

11I find the appellant has alternative means of transportation available to her. The appellant testified that since the impoundment, she and her husband have been using a second vehicle registered in her name, a 2018 Honda Odyssey van (the “van”). She testified that normally she drives the van and her spouse drives the impounded vehicle.

12Since the impoundment, the appellant and her spouse have been relying upon the van. They have used the van to go grocery shopping and attend work. She has also driven her spouse to his place of work in the van when he works early. She has also used the van to take her two youngest children to daycare.

13The appellant testified that she has four minor children, ages 17, 15, 8 and 7, and it has been inconvenient for the family to rely upon only the van. One of her younger children is special needs, and if he has an episode, they need transportation to pick him up. She testified that they are a large family and they require two vehicles. She testified that, on one occasion, her youngest son had to go to the hospital and she had to wait for the van to become available. However, she acknowledged that emergency services are available in her area should the need arise.

14I note the appellant’s father-in-law has also been driving her spouse to work. She testified that it is difficult for her elderly father-in-law to take on this responsibility but he has assisted when able. Since the impoundment, her in-laws have also lent their own vehicle to her spouse and he has been using their vehicle to attend work. He has not missed any days of work. Her in-laws have also driven her children to their dental appointments, although occupational therapy appointments have been missed for one of her children.

15I find the evidence before the Tribunal establishes that there are alternative means of transportation available to the appellant. I find that the evidence establishes that, since the impoundment, the appellant has used her second vehicle, the Honda Odyssey van, to complete her essential tasks and maintain a somewhat regular schedule for her family and herself. Further, her in-laws have also driven members of her family to appointments and work. They have also lent their vehicle to her spouse so he can use it to attend his workplace. While relying upon only the van and rides from family members may not be convenient, nonetheless, I find these alternative forms of transportation have been used.

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.

Rupinder Hans

Adjudicator