Donna Symboluk v. Registrar of Motor Vehicles, 2023 CanLII 81867

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15103/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

Between:

Donna Symboluk Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Donna Symboluk, Self-represented For the Respondent: Andrew Sookhoo, Representative Sadia Ashraf, Observer

HEARD: August 10, 2023

OVERVIEW

1Donna Symboluk, the appellant, appeals from the impoundment of her 2013 Volkswagon, the vehicle, on July 14, 2023 for 45 days.

2The appellant appeals on the ground that the impoundment will result in exceptional hardship to her because she cannot afford the impound fees because she is retired and has no income except CPP and OAS. Karli-Anne Allyssa Symboluk, the appellant’s daughter who was driving the vehicle at the time of impoundment, cannot afford the impound fees either. Secondly, the appellant and her daughter believed that the daughter’s driver’s licence was valid and that the proceedings in Michigan had not resulted in a suspension of the daughter’s licence in Ontario.

3At the hearing the appellant confirmed that her sole ground of appeal is that the impoundment will cause exceptional hardship.

ISSUES

4The issue in dispute is:

i. Whether the impoundment will result in exceptional hardship.

RESULT

5I find that the impoundment will not result in exceptional hardship.

ANALYSIS

6The 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.

7An 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.

Will the impoundment result in exceptional hardship?

8I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

9Section 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.

10If 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.

11I 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. I find that the appellant has not established that there is no alternative to the impounded vehicle.

12Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

13The appellant testified that she is retired and does not need the vehicle to get to her employment. The appellant has been using a second vehicle that the she owns to drive her daughter to work, and to obtain groceries and other personal items

14In cross-examination the appellant admitted that the vehicle ownership records filed by the Registrar show that she is the owner of three other plated motor vehicles although she maintained that two of the other plated motor vehicles are not available to her for her own use.

15The appellant testified that she does not need the vehicle and is appealing the impoundment solely because paying the impound fees will be a financial hardship for her because she is retired and her daughter is unable to help her pay the impound fees.

16The appellant testified that based on her daughter’s Michigan lawyer’s advice, she and her daughter believed that the daughter’s driver’s licence in Ontario was valid and that the court conviction in Michigan resulting from her daughter’s guilty plea in Michigan would not result in a suspension of the daughter’s licence in Ontario.

17However, on cross-examination, the appellant admitted that she had seen the November 16, 2022 letter from the Ontario Ministry of Transportation sent to her daughter by registered mail on November 18, 2022 (the “Suspension Letter”) which informed her daughter that the daughter’s driver’s licence was suspended for a period of one year effective August 24, 2022. The Suspension Letter also informed the daughter that she must pay a fee and/or penalty and complete the impaired driving program, to be eligible to drive when the suspension ends. The Suspension Letter also advised that after the daughter’s driver’s licence is reinstated she must drive a vehicle equipped with an approved ignition interlock device for a period of time. As a result, when the vehicle is released from impoundment, her daughter will not be able to drive it without complying with the requirements set out in the Suspension Letter.

18The appellant admitted in cross-examination that she did not follow up with the Ontario Ministry of Transportation in response to the Suspension Letter and has not checked on the status of the daughter’s driver’s licence since receipt of the Suspension Letter and now realizes that was a mistake. The records filed by the Registrar established that the daughter’s driver’s licence was suspended in Ontario on July 14, 2023.

19I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle. Based on the appellant’s testimony and the records filed by the Registrar, I find that the appellant owns a second vehicle which she is using during the impoundment period and constitutes an alternative to the impounded vehicle available to her.

Conclusion

20As a result, I find the appellant has not established the impoundment will result in exceptional hardship under 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.