Licence Appeal Tribunal File Number: 15666/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:

Crystal Francke

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Crystal Francke, Appellant

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

February 29, 2024

OVERVIEW

1Crystal Francke (the “appellant”) appeals the impoundment of her 2014 Chevrolet Cruze LTZ on February 17, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). At the time of the impoundment, her friend was driving the vehicle while his licence was under the condition to have any vehicle driven by him equipped with a mandatory interlock ignition device resulting from a prescribed Criminal Code conviction.

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under section 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in section 50.2(3). The appellant relies on section 50.2(3)(d), submitting that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

4I have been asked to decide:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ANALYSIS

The impoundment of the vehicle will not result in exceptional hardship.

6Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purpose of s. 50.2(3)(d) of the Act. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

7Section 10(4) of the Regulation states that in order to meet the burden to demonstrate there is no alternative to the impounded vehicle, the owner must show that they have considered and inquired into every reasonable option. Such options may include using another vehicle, taking public transit or taxis, and making arrangements to manage without any vehicle during the impound period.

8Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, under section 10(2)(a), the Tribunal may never consider inconvenience to any person when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle.

9The appellant argues that the impoundment of the vehicle will result in exceptional hardship. In particular, the impoundment has resulted in her inability to get to work and may result in her termination.

10The respondent argues that the appellant does not meet the test for exceptional hardship because she has access to alternative modes of transportation during the impound period. As a result, she does not meet the test for exceptional hardship.

11I find the appellant has not proven that there are no alternatives to the impounded vehicle during the impound period for the following reasons.

12The appellant testified that the impoundment of her vehicle has resulted in her inability to get to work. The week following the impoundment she was on vacation so did not miss any time off work. However, since then she has called in sick three days, out of her six allotted sick days per year. She submits that she lives in Oshawa and her workplace is in Bowmanville and although GO Transit is available between Oshawa and Bowmanville, she has no way to get from the GO bus stop to work because it is not accessible by public transit and is an hour and a half walk from the bus stop. She also asserts that she cannot get a ride from any co-workers because they work different shifts. Further, presenting a letter from her employer as support, she argues that her absence from work will likely result in her suspension or termination because she received a warning letter in September 2023 about her punctuality and attendance. In addition, she testified that she has been unable to get to her part-time job as a face painter, which requires her to travel to various locations throughout Ontario, and that will also result in financial loss. She submits that, as a single woman, she is already struggling to make ends meet and is at serious risk of losing both her part-time and full-time jobs which will result in her inability to support herself.

13The appellant asserts that she cannot afford to take an Uber or Taxi to work because it is too expensive. She has also looked into renting a car during the impound period; however, she cannot afford this and so she has called in sick because she cannot get to work. She is in debt, does not have any savings and after paying rent and putting food on the table, there is no money left over. I asked the appellant to clarify her monthly income and expenses, and she indicated that her salary is approximately $3,480.00 per month. She pays $1,861.00 for rent, $195.00 for car and house insurance, $89.00 for parking and $65.00 for her phone. She is also over $20,000.00 in debt. After the appellant’s expenses are deducted from her salary, she is left with $1,270.00 for food and other expenses. The appellant did not confirm how much makes at her part-time employment.

14While I empathize with the appellant that she does not have unlimited financial resources to pay for Uber, taxis or a car rental, I am not persuaded that she does not have any alternatives to the impounded vehicle during the impound period. In my view, while taking an Uber or taxi from Oshawa to Bowmanville may be too expensive, I find she has not considered the possibility of taking an Uber or taxi from the GO bus stop to work. In addition, in considering the appellant’s monthly expenses, I find that there is no evidence before me that the appellant cannot afford alternatives such as renting a vehicle during the impound period or taking taxis or Uber to and from the bus stop in Bowmanville to work. Further, there is no evidence before me to support that she has looked into these alternatives. I also find that she has public transit available to her and she has access to grocery stores and pharmacies as she acknowledged during cross-examination that they are within walking distance from her home. In addition, she also conceded that she has not missed any doctor’s appointments as a result of the impoundment and has access to emergency services.

15Although the impoundment of the appellant’s vehicle has caused stress, inconvenience, and will likely have financial consequences, I find that she has alternatives to the impounded vehicle because she has access to other means of transportation such as public transit, taxis and Uber. Finally, while the choices available to her may be inconvenient and have financial consequences, these alternative modes of transportation are available to the appellant during the impound period. Further, I find that she has not inquired into every alternative mode of transportation available to her during the impound period such as taking a taxi or Uber from the Go-bus stop in Bowmanville to work.

16As highlighted above, inconvenience is not a factor that I am permitted by the Regulation to take into consideration when determining whether the exceptional hardship test has been met.

17Since there are alternative means of transportation available to the appellant during the impound period, I cannot consider other factors, such as financial loss.

18For the above-noted reasons, I am not satisfied that the appellant has proven, on a balance of probabilities, that she is without alternatives to the impounded vehicle during the impound period.

CONCLUSION

19I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ORDER

20Pursuant to section 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.