Tashina Shawongonabe v. Registrar of Motor Vehicles, 2024 CanLII 10565

Licence Appeal Tribunal File Number: 15471/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:

Tashina Shawongonabe

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Tashina Shawongonabe

For the Respondent:

Sadia Ashraf, Agent

Heard:

December 18, 2023

OVERVIEW

1The appellant, Tashina Shawongonabe, appeals the 45-day impoundment of her 2023 Nissan Murano under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The appellant’s vehicle was impounded on December 1, 2023, after police found it being operated by her friend’s partner, T.B., contrary to a condition on his driver’s licence that prohibited him from driving a motor vehicle not equipped with an ignition interlock device. The appellant’s vehicle is not equipped with one. The appellant was also unaware that her friend was going to allow her partner to drive the vehicle.

3Subsection 55.1(2) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the vehicle is being driven in contravention of a condition, imposed for certain reasons on the driver’s licence under a conduct review program, that prohibits the driver from driving a vehicle not equipped with an ignition interlock device.

4As a result, police impounded the vehicle pursuant to this subsection of the Act.

ISSUE

5The appellant appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on s. 50.2(3)(d) of the Act.

RESULT

6Having considered the parties’ evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship, as the appellant has reasonable alternatives to the impounded vehicle. I therefore dismiss the appeal and confirm the impoundment.

ANALYSIS

7It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that T.B. was driving at the time it was impounded. The appellant was not in the vehicle when it was pulled over by police during a routine RIDE spot check program. T.B. was not found to be under the influence of alcohol on that day. However, he was not permitted to be operating a vehicle without an ignition interlock device.

8The appellant states she was at home sleeping when she received a call from her friend telling her what had happened and that her vehicle was being impounded. Based on the uncontradicted evidence in this case, I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.

9The appellant is a single mother with two children ages 10 and 11. She is employed and lives with her mother, who is currently sick. She explained that she relies on her vehicle to care for her family and to get to and from work. She states that it has been particularly difficult transporting her 11-year-old child, who plays hockey. As a result, she has had to find rides for her child to attend games and practices.

10The appellant also testified that, with the holidays approaching, not having a car has made it difficult to do any shopping for her children. She explained that as she is the eldest grandchild, many family members rely on her, and not having her vehicle has been very difficult.

11The appellant’s father has been helping the appellant during the impoundment period. In addition, she explained that she tries to borrow a vehicle whenever possible. The appellant’s co-workers have also been providing her with pick-ups whenever they can. The appellant works as an administrative assistant, Monday to Friday from 8:30 a.m. to 4:30 p.m. According to her testimony, she has been able to attend work every day during the impoundment period.

12The appellant states she has missed three physiotherapy appointments and has not been able to reschedule. The reason she has not been able to reschedule is because the physiotherapist is not available. The appellant attends physiotherapy to help alleviate pain she suffers when walking. In the interim, her physiotherapist has emailed her exercises that she can do from home. Aside from these appointments, neither the appellant, her children, nor her mother, has missed any other medical appointments.

13During the hearing, the appellant confirmed that she was still able to obtain groceries. She explained that she lives beside a grocery store. There is also a pharmacy nearby if medication is required. She explained that her father can assist her with other errands. There is also a taxi service available in her town, although she notes that it would be expensive for her.

14While there is no doubt that the impoundment of her vehicle has been inconvenient, the appellant appears to have managed well in accessing alternative means of transport. These alternatives have been shown to be effective and reasonable.

Has the appellant experienced exceptional hardship as a result of the impoundment?

15I find that the appellant has failed to show that the impoundment will cause exceptional hardship for the reasons which follow.

16As a first step, s. 10(1) of O. Reg. 631/98 (“Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle.

17Section 10(4) of the Regulation provides that, in order to show that no alternative to the impounded 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.

18The appellant did not offer any evidence to demonstrate on a balance of probabilities that she had no alternative to the impounded motor vehicle. In fact, the appellant testified that she has been using other options, such as getting rides from her father and co-workers, borrowing a car when available, and walking to the grocery store if necessary.

19The appellant’s mother lives with her and suffers from medical issues. There was no evidence presented which indicates any immediate health and safety concern over the loss of the vehicle. Nor is there any claim of her mother missing any doctor’s appointments due to not having the vehicle available. The appellant’s children have been able to attend school and get to and from their extra-curricular activities.

20The appellant has been able to obtain groceries for her family during the impoundment period. She has also maintained her employment and has not missed any days of work.

21I find that the appellant does have reasonable alternatives. They have allowed her to continue her daily routine with no major disruption. The loss of her vehicle is no doubt inconvenient, but she has considered and indeed taken advantage of opportunities to overcome this temporary loss.

22The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives to the impounded vehicle, then an appeal on the basis of exceptional hardship cannot succeed. For the reasons set out in this decision, I find that the appellant has failed to discharge the threshold burden of establishing on a balance of probabilities that there are no reasonable alternatives to the impounded vehicle. She therefore does not meet the test for exceptional hardship, as set out in the Regulation, based on the alternatives available to her.

ORDER

23For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.