Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 15150/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:

Ashley Arruda Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

Appearances:

For the Appellant: Ashley Arruda, Self-represented For the Respondent: Andrew Sookhoo, Representative

HEARD: August 28, 2023

OVERVIEW

1Ashley Arruda, the appellant, appeals from the impoundment of her 2011 Kia, the vehicle, on August 2, 2023 for 90 days. At the time of impoundment the vehicle was being driven by the appellant’s mother whose driver’s licence was suspended.

2At the hearing the appellant confirmed that her sole ground of appeal is that the impoundment will cause exceptional hardship and that although her Notice of Appeal states that she was unaware that her mother had taken the vehicle that day, the appellant did not wish to pursue the ground of appeal that her vehicle was stolen.

3The appellant has a medical condition which restricts her mobility and she uses a scooter. The vehicle has been equipped to transport the appellant and her scooter. The appellant states in her Notice of Appeal that a 90-day impoundment will cause extreme physical and financial hardships for her because she needs her vehicle to get to her health appointments in a specific timely manner and, because her only income is ODSP, she cannot afford the impound fees.

4The respondent submits that this appeal results from the third impoundment of the vehicle since July, 2022, that the exceptional hardship ground of appeal is not available to the appellant because of s. 50.2(4) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) and that the appellant’s circumstances would not meet the definition in the legislation of exceptional hardship in any event.

ISSUES

5The issues in dispute are:

i. Issue 1: Whether the exceptional hardship ground of appeal is available to the appellant in this case, and, if so

ii. Issue 2: Whether the impoundment will result in exceptional hardship.

RESULT

6On the first issue I find that the exceptional hardship ground is not available to the appellant because she is an owner who has previously had a vehicle impounded under s. 55.1 of the HTA. As a result, I need not determine the second issue.

ANALYSIS

7The 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 (“HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

8An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the HTA. Here the appellant appeals on ground (d), that the impoundment will result in exceptional hardship. However, under s. 50.2(4) of the HTA, the right to appeal on the ground of exceptional hardship is not available to an owner of an impounded vehicle “…if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner”.

Is the exceptional hardship ground of appeal available to the appellant?

9The appellant testified that the two previous impoundments of the vehicle do not disqualify her from this appeal on the grounds of exceptional hardship because they were both cancelled and at the time of the first impoundment in 2022 she did not own the vehicle. The appellant had no documentation to establish that the July 11, 2022 impoundment of the vehicle was cancelled although she testified that the police told her it had been.

10The Register’s documentary evidence filed establishes that the vehicle has been impounded three times since July 11, 2022 as follows:

(a) July 11, 2022 for 45 days under s. 55.1 of the HTA;

(b) June 3, 2023 for 45 days under s. 55.1 of the HTA; and

(c) August 2, 2023 for 90 days under s. 55.1 of the HTA.

11At the time of all three impoundments the vehicle was being driven by the appellant’s mother.

12The appellant admits that all three impoundments of the vehicle occurred but testified that she did not own the vehicle when it was impounded in 2022. The documents filed by the Registrar show that the appellant’s mother was the owner of the vehicle on July 11, 2022. Section 50.2(4) of the HTA does not apply to the 2022 impoundment because the appellant was not the owner of the vehicle at the time of this previous impoundment.

13Section 50.2(4) of the HTA does apply to the two impoundments which took place on June 3, 2023 and August 2, 2023 because the appellant was the owner of the vehicle at the time of these two impoundments as established by the documents filed by the Registrar. The appellant filed proof that the ownership of the vehicle was transferred to her by her mother in April 2023.

14The Registrar confirmed that the June 3, 2023 impoundment was appealed to this Tribunal which found that the impoundment resulted in exceptional hardship and ordered the Registrar to release the vehicle. The Registrar submits that the Tribunal’s decision does not invalidate the impoundment which took place. I agree with this submission. After hearing an appeal of an impoundment under s. 55.1, the Tribunal is empowered to “…order the Registrar to release the motor vehicle”. The Tribunal’s is given no legislative mandate to declare that the impoundment never took place.

15I find that the impoundment of the vehicle on June 3, 2023 took place but the Tribunal ordered the release of the vehicle.

16As a result, the impoundment of the vehicle on August 2, 2023 was the second impoundment of the vehicle when it was owned by the appellant. Section 50.2(4) provides that Clause (3)(d) of s. 50.2 does not apply if there was a previous impoundment under s. 55.1 with respect to “…any motor vehicle then owned by the same owner”. Clause (3)(d) provides that one of the grounds on which an owner may appeal an impoundment under s. 55.1 is that the impoundment will result in exceptional hardship.

17Given these facts, I find therefore that the exceptional hardship ground of appeal under s. 50.2(3)(d) is not available to the appellant because she is an owner of a vehicle who has previously had a vehicle impounded under s. 55.1 of the HTA.

Will the impoundment result in exceptional hardship?

18Given that I have found that the exceptional hardship ground of appeal is not available to the appellant, I need not determine the second issue.

ORDER

19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.