Licence Appeal Tribunal File Number: 16529/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Cherise O’Connor

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Cherise O’Connor, Self-Represented

For the Respondent: Leila Pereira, Representative

HEARD: December 13, 2024

OVERVIEW

1The appellant, Cherise O’Connor, 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 2018 Honda motor vehicle. The appellant’s motor vehicle was impounded on November 19, 2024. At the time it was detained in order to be impounded, P.A. was driving the vehicle while his licence was suspended as a result of a prescribed Criminal Code conviction.

2The appellant appeals on the grounds that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act, and therefore, the impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2018 Honda motor vehicle (the “vehicle”);

ii. on November 19, 2024, the police discovered the vehicle being driven by P.A. (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

6The 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 established that there is no alternative to the impounded vehicle and she has not met her burden.

7Section 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.

8Subsection 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.

9If 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.

10If 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.

11The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

12The appellant testified that she is a Canada Post employee and has been on strike, and thus, has limited income. She testified that, had the vehicle not been detained in order to be impounded, she would be using the vehicle to make delivers for Uber Eats to earn income. She testified that she has no other income sources other than any Uber Eats income and strike pay. She does acknowledge that she has an online network marketing business that she has been devoting her time to since the impoundment, however, it has not, as yet, generated any income. She operates this business from her home.

13The appellant testified that the financial cost of the impoundment is onerous given her limited employment income.

14The appellant testified that, since the impoundment, she has rented a vehicle for her daily use. She testified that she is covering most of the cost of the rental vehicle and her parents are providing some funds to assist her. She testified that she has used the rental vehicle to meet her grocery, pharmaceutical and personal needs. She is renting the vehicle on a week to week basis.

15The appellant testified that she lives with her parents and they have a vehicle that they use to attend for grocery shopping, and they are primarily responsible for grocery shopping in the household.

16The appellant further testified that, since the impoundment, she has used an Uber, and she acknowledges that public transportation is available to her but not convenient. She has not missed any doctor’s appointments.

17I find that the appellant has not established that there is no alternative to the impounded vehicle. On the contrary, since the day after the impoundment, the appellant has been using a rental vehicle to attend to her work commitments, obtain groceries and complete her essential tasks. While the rental of the vehicle is not cost effective and she will need to possibly reimburse her parents for their assistance to cover the cost, nonetheless, I find that this alternative form of transportation is being utilized by the appellant. I note that I may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

18In this case, the appellant also has access to public transportation and has utilized Uber. While the appellant testified that she can not drive for Uber Eats in the rental vehicle, this is not determinative in my analysis. I note that evidence establishes that the appellant has an alternative to the impounded vehicle available to her, and pursuant to subsection 10(3) of the Regulation, I may not consider financial, economic, or employment losses.

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.

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.