Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 16431/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Danielle Birch
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Rupinder Hans
APPEARANCES:
For the Appellant: Did Not Attend
For the Respondent: Leila Pereira, Representative
HEARD: November 27, 2024
OVERVIEW
1The appellant, Danielle Birch, appeals under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act") from the 45-day impoundment of a 2014 Kia motor vehicle. The vehicle was detained in order to be impounded on October 24, 2024, when it was found driven by a driver whose driver's licence was suspended as a result of a Criminal Code conviction. The 45-day impoundment period ends on December 8, 2024.
2A hearing on the appeal was originally scheduled for November 19, 2024. At the hearing, the appellant sought a one-week adjournment to allow her sufficient time to obtain additional information and documentation for her appeal. The appellant advised that she was waiting for medical records from Victoria Hospital, and paperwork regarding the charges that had been filed against the suspended driver. The respondent consented to the adjournment request, and a brief adjournment was granted.
3On November 21, 2024, the parties were emailed the Tribunal's Order adjourning the hearing date. On the same date, the parties were sent another email providing a Notice of Rescheduled Hearing, giving notice that the hearing had been rescheduled to November 27, 2024, a date that both parties had indicated their availability.
4At the rescheduled hearing, Ms. Leila Pereira, a representative of the Registrar of Motor Vehicles (the "Registrar") attended but the appellant did not attend. I waited the requisite time, and during that time, the Tribunal made efforts to contact the appellant by telephone and email to ascertain her attendance. A voicemail message was left for the appellant and the hearing details were re-sent to her by email. The appellant did not respond to any attempt to contact her. The appellant also did not file any additional documentation since the previously adjourned hearing. Under Rule 3.7.1 of this Tribunal's Rules, if a party, who has been given the required notice of a hearing, does not attend their hearing within 30 minutes of the scheduled start time, the Tribunal may proceed with the hearing in the party's absence. Given the above and that an adjournment had previously been granted, the hearing proceeded without the appellant.
5A review of the Notice of Appeal, dated November 5, 2024, reveals that the appellant is appealing on the ground that the impoundment will cause exceptional hardship.
ISSUES
6The issue in dispute is:
i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
RESULT
7I confirm the impoundment of the appellant's motor vehicle. The appellant brought forward no evidence to support a finding that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
ANALYSIS
8The respondent presented uncontradicted evidence which establishes that:
i. the appellant is the registered owner of the impounded vehicle, a 2014 Kia motor vehicle (the "vehicle");
ii. on October 24, 2024, the police discovered the vehicle being driven by Dustin Sharp (the "driver"); and
iii. the licence of the driver was under suspension for a prescribed Criminal Code conviction at the time the police detained the vehicle for impoundment.
Whether the impoundment will result in exceptional hardship
9The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find the appellant has not met her burden.
10Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
11Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
12If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.
13If the owner proves that there is no alternative to the impounded vehicle available, then subsection 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or property of a community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses.
14The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
15I note that the appellant did not appear at the hearing to provide any testimony, did not submit any written submissions, and did not offer any documentary evidence. No witnesses testified on her behalf. Nonetheless, I reviewed the Notice of Appeal which provides some details on the appellant's position. The appellant states in the Notice of Appeal that the impound fees along with the loss of motor vehicle for 45 days will result in undue financial hardship as her only source of income is unemployment benefits. She further states that the loss of the vehicle will significantly negatively impact the health of her cousin who is undergoing cancer treatment at Victoria Hospital in London, Ontario. The appellant provides transportation to her cousin twice a week to and from the hospital for treatment, and transports her cousin's children to visit her in the hospital during hospital stays. She further states that her cousin's children reside in her residence, and she uses the vehicle to transport them to and from school. Further, she states that her cousin, her cousin's children and her are all negatively impacted by the impoundment.
16The appellant provided no evidence in support of the assertions in her Notice of Appeal. Even considering this information, I am unable to conclude that the appellant has no alternative to the impounded vehicle. There is no evidence before the Tribunal to indicate the appellant does not have access to public transportation, taxi services or Ubers/ride sharing services. There is also no evidence before the Tribunal to indicate the appellant does not have access to a rental vehicle, or the ability to borrow a vehicle from family or friends, or be driven by them.
17The Registrar presented evidence establishing that there are two other motor vehicles registered to the appellant, specifically, a 2009 Nissan vehicle and a 2011 Ford vehicle. The Registrar presented persuasive evidence that both these vehicles are four door sedans and are fit to drive. There is no evidence before the Tribunal to indicate that these two alternative vehicle are unfit to drive or are no longer in the possession of the appellant. These two vehicles appear to be alternative forms of transportation that are available to the appellant (in addition to potential access to the aforementioned public transportation, taxi and ride sharing services).
18As noted above, despite the fact that the onus is on the appellant to establish this ground of appeal, she did not attend the hearing or provide evidence for this hearing to support her ground of appeal.
19I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test, in support of which she has in any case led no evidence.
20Under the circumstances, I find the appellant has not proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act must fail.
ORDER
21Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant's vehicle is confirmed.
Released: December 9, 2024
Rupinder Hans
Adjudicator