Licence Appeal Tribunal File Number: 15155/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 under section 55.1 of the Act for driving while suspended.

Between:

Benjamin Wolnowski

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Benjamin Wolnowski, Self-represented

For the Respondent: Leila Pereira, Representative

Heard by Teleconference: September 1, 2023

OVERVIEW

1Benjamin Wolnowski, the appellant, appeals from the impoundment of his 2017 Ford pick up truck, the vehicle, on August 1, 2023 for 45 days. At the time of impoundment, the vehicle was being driven by the appellant’s girlfriend Brandy Tonkin who did not have a valid driver’s licence.

2The appellant appeals on the ground that the impoundment will result in exceptional hardship to him because he needs her vehicle to get to his employment and to obtain groceries.

ISSUE

3The issue in dispute is:

Issue 1: Whether the impoundment will result in exceptional hardship.

RESULT

4I find that the impoundment will result in exceptional hardship, and I direct the respondent to release the impounded vehicle.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Issue 1: Will the impoundment result in exceptional hardship?

7I find that the impoundment will result in exceptional hardship because the appellant has no alternative available to the impounded vehicle, and the appellant will suffer loss of employment and consequent financial losses, all within the meaning of s. 10 of the Regulation.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the 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 appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle.

11Pursuant to s. 10(3) of the Regulation, the Tribunal may consider financial or economic loss to any person, loss of employment or employment opportunity to any person or loss of education or training opportunity to any person if the owner demonstrates that:

a. no alternative to the impounded vehicle is available;

b. the loss will be immediate, significant and lasting;

c. the impact of the loss will be on a person ordinarily transported by the vehicle

d. the impact of the loss will be on a person other than the person whose driving while suspended resulted in the impoundment.

The Appellant Has No Alternative

12I find that the appellant needs to use the vehicle to get to his employment as a truck driver, to obtain groceries for himself and his girlfriend and there is no reasonable alternative available to him.

13The appellant testified that he was employed at the time of the impoundment at a construction company as a commercial truck driver and also at another employer. The appellant testified that he wants and needs to get back to work. Ms. Tonkin, with whom he lives, is currently unable to work as a result of an injury to her leg and needs to undergo further corrective surgery. Ms. Tonkin testified that she is awaiting a date for her second surgery. The appellant provided a copy of his employment contact with the construction company which predates the date of the impoundment, a copy of an MTO driver search confirming his commercial driver’s licence, and other documents including his resume. The appellant testified that he has informed his employer of the impoundment and has been told that if his position is still available after the impoundment, he will be considered for it again.

14The appellant testified that he lives in a remote area of Ramara Township. The appellant’s residential address is on a Concession Road in Ramara Township. The appellant testified that since the impoundment he has not been able to work as he cannot get to his employment. The appellant testified that he has no family or friends who can provide transportation for him to get to his work. There is no public transportation where he lives and a taxi to the nearest municipality is approximately a $66.00 taxi ride each way. The appellant testified that he has no ability to earn income without access to his truck to get to his employment. It is a 45 minute drive to the nearest convenience store and there are no stores within walking distance of his home. Both the appellant and Ms. Tonkin testified that they have been unable to obtain groceries since the date of the impoundment and are living on their stores of canned food and some vegetables that a neighbour gave them from her garden.

15Based on the appellant’s evidence, I accept that the appellant does not have a reasonable alternative available to him during the impoundment period. He has been unable to attend his employment since the date of the impoundment and has applied for welfare. The appellant is unable, because he lives in a remote area, to access any public transportation, has no friends or family who can assist during the impoundment period by providing transportation and cannot afford taxi service because of the cost of taxi services to his remote location.

16Although the records filed by the respondent show that the appellant owns another vehicle, a 2008 Ford, the appellant and Ms. Tonkin both testified that this vehicle is unavailable for the appellant to drive. The appellant testified that the 2008 Ford was stolen some years ago.

17The appellant has established that he has considered every reasonable option during the impoundment period.

Loss Will Be Immediate, Significant and Lasting

18I find that the loss of the appellant’s employment is immediate, significant and lasting.

19The loss of his employment income is immediate because the appellant had to stop working when the impoundment occurred and has not been able to work since.

20The loss of the appellant’s employment income is significant because he needs this income to support himself and Ms. Tonkin who is unable to work currently and is on social assistance.

21The loss of his employment income is lasting because it will result in a complete loss of earnings for at least 45 days and has to potential to impact his employment if his employer cannot keep his position open for him and it is filled before he can come back to work.

Impact of Loss is on Person Other Than Driver of the Vehicle

22The loss of the appellant’s employment income is on the appellant who was not driving the vehicle at the time of impoundment.

Impoundment will Result in Financial Loss/Loss of Employment

23I find that the impoundment will result in the appellant being unable to work with the resultant loss of income on which he depends.

Conclusion

24As a result, I find the appellant has established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

25Pursuant to subsection 50.2(5) of the HTA, I direct the respondent to release the vehicle to the appellant.

LICENCE APPEAL TRIBUNAL

Avril A. Farlam, Vice-Chair