Licence Appeal Tribunal File Number: 15592/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 pursuant to section 55.1 of the Act.

Between:

Delphin Dushime

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Delphine Dushime, Appellant

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

February 2, 2024

OVERVIEW

1Delphin Dushime (the “appellant”) appeals the impoundment of his 2018 Kia Optima on January 14, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). At the time of the impoundment, he was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) allowing the appeal and that the Registrar release the vehicle.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on section 50.2(3)(d) and submits that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

4I have been asked to decide:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ANALYSIS

The impoundment of the vehicle will not result in exceptional hardship.

6Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purpose of s. 50.2(3)(d) of the Act. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

7Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option. Such options may include using another vehicle, taking public transit or taxis, and planning to manage without any vehicle during the impound period. In addition, the owner’s inability to afford the impoundment fees is not a factor the Tribunal takes into consideration in determining whether the exceptional hardship test has been met.

8Only if the appellant demonstrates that no alternative to the impounded vehicle is available to him may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle.

9The appellant argues that the impoundment of the vehicle will result in exceptional hardship because he needs the vehicle to transport his wife and six-month-old son to medical appointments and to get necessities such as groceries. Further, he does not have the financial means to pay for taxis or Ubers because he is a seasonal worker and is currently receiving EI. He also asserts that he does not have the resources to pay for the cost of the impoundment fees. The appellant also submits that he was not the driver of the vehicle on the date of the impoundment.

10The respondent argues that the appellant does not meet the test for exceptional hardship because he has taken taxis and public transit since the impoundment to get to medical appointments and obtain groceries. Further, his brother lives five minutes away and has assisted him with getting groceries since the impoundment. As a result, he has access to alternative modes of transportation during the impound period and does not meet the test for exceptional hardship.

11I find the appellant has not proven that there are no alternatives to the impounded vehicle during the impound period for the following reasons.

12The appellant testified that he needs his vehicle back because the impoundment has caused an economic crisis and health and safety risk to his family. He testified that he is the sole income provider for his family but right now he is receiving EI because he does seasonal work. He said he receives $2,300.00 a month in EI benefits, and he pays $1,100.00 per month for rent and utilities; $360.00 per month for car payments; and $500.00 per month for car insurance. He also stated that he does not have the resources to pay for the cost of the impoundment fees or the cost of taking taxis and Uber. He also stated that his six-month-old son missed a doctor’s appointment because he did not have a vehicle and the weather was too cold to take public transportation.

13During cross-examination, the appellant conceded that his son only missed one doctor’s appointment which he was able to reschedule and attend the next day. Further, he has taken taxis on five occasions during the impoundment and his brother, who lives five minutes away, has assisted with taking him grocery shopping. He also acknowledged that he has access to public transit, which is very inconvenient because it takes too long, and it is not practical for transporting groceries from the store to his home.

14Although the impoundment of the appellant’s vehicle has caused stress, inconvenience, and has had financial consequences, I find that he has alternatives to the impounded vehicle because he has access to other means of transportation such as public transit and taxis which he has used since the impoundment. Further, his brother lives close by and has assisted him with grocery shopping. Finally, although public transit is inconvenient, I find this is an alternative mode of transportation available to the appellant during the impound period.

15As highlighted above, inconvenience is not a factor taken into consideration when determining whether the exceptional hardship test has been met.

16Since there are alternative means of transportation available to the appellant during the impound period, I need not take into consideration the other criteria in the Regulation that define the exceptional hardship test such as financial loss or health and safety issues.

17I am not satisfied that the appellant has proven, on a balance of probabilities, that he is without alternatives to the impounded vehicle during the impound period.

18Regarding the appellant’s assertion that he was not the driver of the vehicle on the date it was impounded, s. 50.2(3) of the Act expressly sets out the five grounds an impoundment may be appealed. I conclude that mistaken identity is not grounds for an appeal. Therefore, I find that I do not have the authority to address this issue.

CONCLUSION

19I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ORDER

20Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.