Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension
Between:
Breann Jodway
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
L. Pereira, agent for the Registrar
Heard by teleconference:
February 6, 2023
Date of Order
February 13, 2023
Overview
1On January 7, 2023, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.5(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section allows a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ends on February 21,2023.
2The appellant admitted the vehicle in question was owned by her and at the time it was impounded, was being driven by someone whose driver’s licence was suspended because of a conviction under the Criminal Code of Canada. The appellant appealed the impoundment on the ground the impoundment caused exceptional hardship.
Result
3For the reasons outlined below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
Issue
4The issue to be determined is whether the impoundment resulted in exceptional hardship.
The Law
5Section 50.2 of the HTA allows only a few limited grounds on which an owner may appeal, one of which is exceptional hardship, pursuant to section 50.2(3)(d) of the HTA. The onus is on the appellant to establish one or more of those grounds.
6Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met to show the impoundment will result in exceptional hardship.
7Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
8Section 10(4) sets out what an appellant must show to meet this initial prong of the test:
(4) In order to show that no alternative to the impounded motor vehicle is available… 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.
9Only if this initial step of the test for exceptional hardship is met, may I then consider whether on a balance of probabilities, the impoundment will result in:
a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
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.
10Additionally, the Regulation stipulates that unless the appellant demonstrates there was no alternative to the impounded vehicle, the Tribunal is prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship.
Evidence and Analysis
11The respondent presented documentary evidence which established that:
a) the appellant is the registered owner of the impounded vehicle,
b) on January 7, 2023, the vehicle was stopped while being driven by a person whose licence was suspended because of a Criminal Code conviction,
c) the vehicle was impounded pursuant to s. 55.1 of the HTA, and
d) the vehicle was eligible for release on February 21, 2023.
12I am satisfied the vehicle was validly impounded, and so I now turn to the ground of appeal itself.
13I agree with the respondent’s position that the appellant has alternative means of transportation during the period of impoundment. The appellant testified she is relying on the bus system for groceries, medical appointments and attending her volunteer work. Her friend has been able to pick up her medication. Additionally, on occasion, her brother has been able to provide transportation assistance. Although inconvenient, her teenage children can walk to school and take buses to their extra curricular activities.
14The appellant asserted the extra time she is spending in the cold taking the bus aggravates a medical condition, resulting in a longer period of discomfort when she gets back into a heated area. While acknowledging this discomfort (although there was no medical confirmation), I find it does not negate the fact that she has been able to rely on alternative modes of transportation during the impoundment.
15The appellant has not met the first prong of the test, that is the absence of alternative transport and therefore, while the appellant testified the cost of the impoundment would be financially difficult, financial hardship cannot be considered.
16As the appellant has failed to show there was no alternative to the impounded vehicle, I need not consider the remaining components of the exceptional hardship test.
17Although it is clear the impoundment is resulting in inconvenience and stress for the appellant, she has failed to prove exceptional hardship under the HTA and her appeal must fail on this ground.
Order
18For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: February 13, 2023