Richard Chenier v. Registrar of Motor Vehicles, 2023 CanLII 91461

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15089/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:

Richard Chenier Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: No one attended For the Respondent: Leila Pereira, Agent

HEARD: September 7, 2023

DECISION

OVERVIEW

1A teleconference hearing was held on September 7, 2023 to consider the appeal of Richard Chenier (the “appellant”) of the impoundment of his 2011 Jeep (the “vehicle”) on July 12, 2023 for 45 days.

2The appellant submits in his Notice of Appeal that he has medical conditions that cause difficulty for him to take a bus, get groceries and get to appointments.

3The appellant did not attend the hearing despite having been given notice of the hearing by the Tribunal. I waited 30 minutes for him to attend the hearing but he indicated he is not going to attend because he has already got the vehicle back by paying the impoundment fee.

4Rule 3.7.1 of the Licence Appeal Tribunal Rules dated August 21, 2023 provides that if a party who has been given notice of a hearing does not attend their hearing within 30 minutes of the schedule start time of the hearing, the Tribunal may proceed with the hearing in the absence of that party. I proceeded with the hearing.

5I asked the respondent for submissions on which ground or grounds the Notice of Appeal appeared to advance. The respondent submitted that the Notice of Appeal indicates a ground of exceptional hardship.

6I agree with this submission and the hearing proceeded on the ground of exceptional hardship.

ISSUE

7The issue to be determined is whether the impoundment will result in exceptional hardship.

RESULT

8I confirm the impoundment of the appellant’s vehicle. I find that the appellant brought forward no evidence to support a finding that the impoundment will result in exceptional hardship.

ANALYSIS

9The 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.

10An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The Notice of Appeal makes statements which indicate that the appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

11I find that the impoundment did not result in exceptional hardship because the appellant had alternatives available to the impounded vehicle.

12Section 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.

13If 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.

14I 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.

15Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

Appellant Failed to Attend the Hearing and Submitted No Evidence

16The appellant bears the onus to establish that the impoundment will result in exceptional hardship. I find that the appellant has failed to meet this onus.

17The appellant failed to attend the hearing on September 7, 2023 and submitted no evidence in support of his appeal.

18The respondent submitted that the hearing should proceed in the absence of the appellant who was made aware of the hearing date by the Tribunal and told Tribunal staff during the hearing that he is not attending the hearing even though he was asked to do so by Tribunal staff.

19I accepted the respondent’s submissions and the hearing proceeded in the absence of the appellant.

20I was left with no evidence to support the appellant’s appeal.

The impoundment will not result in exceptional hardship

21Based on the respondent’s submissions at the hearing, I find that the appellant has alternatives to the impounded vehicle available to him during the impoundment period.

22It is clear from the Notice of Appeal that the appellant resides in a municipality that provides public transportation and refers specifically to his opportunity to take a bus, albeit with difficulty.

23Despite the fact that the onus is on the appellant to establish his ground of appeal, specifically exceptional hardship, the appellant did not attend the hearing or provide any evidence for this hearing to support his ground of appeal.

Conclusion

24As a result, I find the appellant has not established the impoundment has resulted 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 confirm the impoundment of the appellant’s vehicle.