Licence Appeal Tribunal File Number: 15536/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:
Tharsiga Sivagnanasunram
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Tharsiga Sivagnanasunram
For the Respondent:
Leila Pereira, Agent
Heard:
January 18, 2024
OVERVIEW
1The appellant, Tharsiga Sivagnanasunram, appeals the 45-day impoundment of her 2020 Toyota Corolla 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 31, 2023, after it was involved in a collision and police found it being operated by her friend, S.B., while his licence was under a Criminal Code suspension.
3The appellant states that she was out of the country at the time of the incident and was unaware S.B. did not have a valid driver’s licence. She left her keys with S.B. to allow her friend to come to her home while she was away so she could retrieve certain contents from the vehicle.
4Subsection 55.1(2) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle at the time of its detention is under suspension for certain Criminal Code offences. In this case, S.B.’s driver’s licence was under an indefinite suspension, pursuant to s. 41(1)(b) of the Act following a conviction for failing to stop for a police officer in 2022, contrary to s. 320.17 of the Criminal Code.
5As a result, police impounded the vehicle pursuant to s. 55.1(1)1. of the Act.
ISSUE
6The 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
7Having 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
8It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that S.B. was driving at the time it was impounded. The appellant states that she has known S.B. for a few months and had no reason to doubt he did not have a valid driver’s licence. She did not specifically ask to see his licence prior to leaving her keys with him. It is noted that the appellant did not pursue an argument that she exercised due diligence in determining that S.B.’s licence was not under suspension and relied on the grounds of exceptional hardship.
9The appellant states that the loss of her vehicle has resulted in exceptional hardship as she is the only driver in her family of 3. Her father has bad eyesight due to diabetes and is currently recovering from cataract surgery. She helps him to and from his doctor’s appointments and is also responsible for grocery shopping. Her mother does not drive.
10Along with medical appointments, the appellant uses her vehicle to get to and from work. She is currently employed with Sunnybrook Hospital and works Monday to Friday. In addition, the appellant states that she also uses her vehicle for weekend errands and to visit her grandparents.
11Since the impoundment of her vehicle, the appellant has been taking public transit or using Uber ride share. She states that it has been especially difficult during the winter due to the cold weather. She also states that she has no siblings or other family members who can assist with her transportation needs at this time.
12During her testimony, the appellant confirmed that she has been able to rent a vehicle in the past week. Her hope is to keep the rental vehicle while her vehicle is being repaired through the insurance company. It was unclear if she would be reimbursed the cost of the rental vehicle since the insurance is still assessing her claim to damage caused by the collision.
13As a result of having alternate transportation, the appellant has been able to attend work every day during the impoundment period. Her father was also able to get a ride to his doctor’s appointment by a friend. The appellant has still managed to obtain groceries and run errands during this time.
14The appellant did note that she was unable to attend a dentist appointment recently. However, she has easy access to public transit and has demonstrated a willingness to use Uber, a rental vehicle and public transit to get around.
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 a rental vehicle, public transit or ride share programs (e.g. Uber) if necessary. The abundance of choices available to her make her grounds of exceptional hardship uncompelling.
19The appellant lives with her parents. While her mother is in good health, she does not have a driver’s licence. Her father suffers from medical complications due to diabetes but has not missed any medical appointments. 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 anyone, aside from the appellant’s dental appointment, missing any doctor’s appointments due to not having the vehicle available.
20The appellant has been able to meet her obligations in caring for her family while her vehicle was impounded. 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.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: February 20, 2024