Licence Appeal Tribunal File Number: 15619/MVIA

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

Between:

Wendy W.N. Lee Vance

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Wendy W.N. Lee Vance

For the Respondent:

Sadia Ashraf, Representative

HEARD: February 15, 2024

OVERVIEW

1The appellant, Wendy W.N. Lee Vance, appeals from the 45-day impoundment of a 2011 Hyundai Santa Fe motor vehicle (the “vehicle”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on January 28, 2024. At the time of the impoundment, her husband Brian Vance was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

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

ISSUE

3The issue in dispute is:

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

RESULT

4I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The Registrar presented evidence, which satisfies me that:

i. the appellant is the registered owner of the impounded vehicle, a 2011 Hyundai Santa Fe;

ii. on January 28, 2024, the police discovered the vehicle being driven by Brian Vance; and

iii. Mr. Vance was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction at the time of the 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 that the appellant 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 s. 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 community in whose service the motor vehicle is ordinarily used. According to s. 10(3) of the Regulation, 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. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11I find the appellant has alternative means of transportation available to her.

12The appellant testified that, for the first week of the impoundment period, she was able to borrow and drive her sister’s vehicle to attend to her daily responsibilities. However, this was not a feasible or long term option as her sister needs her vehicle for her own tasks. The appellant testified, after the first week of the impoundment, she rented a vehicle to attend to her daily tasks, a GMC sport utility vehicle. She testified that she has to physically attend her place of work twice a week and she has been using the rental vehicle to attend work as required. She is also using the rental vehicle to take her two and a half year old son to and from his daycare on a daily basis. She has further used the rental vehicle to obtain groceries.

13The appellant testified that, since the impoundment, she has not missed any days of work and her son has not missed any days of daycare. In addition, no medical appointments have been missed.

14The appellant testified that she would continue to rent a rental vehicle until she obtains the vehicle back from impoundment. She testified that she needs to ensure that her son attends his daycare and she keeps fulfilling her employment obligations and the rental vehicle assists in this regard. She testified that she pays approximately $300.00 per week for the rental vehicle, and she would prefer not to have to pay for a rental so she could use the money for her son’s needs.

15I find the evidence before the Tribunal establishes that there are alternative means of transportation available to the appellant that she has used since the impoundment. She has used her sister’s vehicle to complete her daily tasks. More notably, she has rented a vehicle and indicates that she will continue to rent until she is able to get the vehicle out of impoundment. She has used the rental vehicle to attend work, take her son to his daycare and attend to her essential tasks, including groceries. While I note that the appellant testified that the cost of the rental is high and is taking away money from the amount she has for her son’s care, nonetheless, I find the rental vehicle is an alternative form of transportation that the appellant has used.

16I further note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

17In my view, the appellant has been able to rent a vehicle and the rental is an alternative to the impounded vehicle.

18Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the 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.

19Although the impoundment may have resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

20On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.