Licence Appeal Tribunal File Number: 15981/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:

Sharon Vassallo

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Sharon Vassallo, self-represented

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: June 28, 2024

OVERVIEW

1Sharon Vassallo (the “appellant”) appeals the impoundment of her 2022 Dodge Ram pickup truck on June 2, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 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.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2(3) of the Act. The appellant appeals on the ground under s. 50.2(3)(d), that the impoundment will result in exceptional hardship.

ISSUES

4The issues in dispute are:

i. Will the impoundment result in exceptional hardship?

RESULT

5I find that the appellant has not demonstrated that the impoundment will result in exceptional hardship. The impoundment is confirmed.

ANALYSIS

Circumstances of the impoundment

6Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven on a highway by a person whose licence was under suspension for certain driving-related Criminal Code convictions.

7In her Notice of Appeal, the appellant argues that the impoundment of the vehicle was improper. At the time of the impoundment, Mark Vassallo (the “driver”), son of the appellant, was said to be sitting in the driver’s seat of the vehicle, without the engine running, and the vehicle was parked on private property in a restaurant parking lot. The appellant states that he “was not driving, just sitting eating his food”.

8Although the appellant did not refer to the provisions of s. 55.1 in her Notice of Appeal or in her oral testimony, her evidence alleges that the driver was neither driving, nor operating the vehicle on a highway at the time he was apprehended by police.

9The respondent submitted evidence that the driver’s licence was under suspension pursuant to ss. 41 and 43 of the Act. The respondent submits the vehicle was impounded pursuant to s. 55.1 for a period of 45 days.

10As noted above, subsection 50.2(3) of the Act sets out the grounds on which a vehicle owner may appeal the impoundment of their motor vehicle. These are explicitly specified to be the only grounds on which the Tribunal may order the Registrar to release the vehicle. There is no authority in the Act for the Tribunal to hear appeals in relation to whether a person was driving the motor vehicle in question on a highway, nor to order the release of a vehicle on that basis.

Exceptional Hardship

11I find that the appellant has not proven that the impoundment will result in exceptional hardship.

12Ontario Regulation 631/98 (the “Regulation”), under the Act, sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.

i. Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle. Only if there is no alternative may I consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

ii. Further, I may only consider other consequences of the impoundment such as financial or economic loss, or loss of employment or education in determining whether the exceptional hardship test has been met, if the owner demonstrates not only that no alternative to the impounded vehicle is available, but also that the loss will be immediate, significant and lasting, will be upon a person ordinarily transported by the vehicle, and that the impact of the loss will be upon someone other than the suspended driver.

iii. In order to establish that there is no alternative, s. 10(4) of the Regulation requires the owner of the impounded vehicle to demonstrate that every reasonable option has been explored and inquired into, including using another vehicle or arranging to be without any vehicle.

13The appellant testified that the impounded vehicle is her primary vehicle for personal use. She owns a second vehicle, a 2004 Nissan sports car, but it was her late husband’s car, and it has a manual transmission. She does not feel safe and competent to drive the Nissan and operating the clutch with her left knee pain make it unusable. She testified that she has not used the Nissan since the impoundment.

14The appellant testified that she is retired, lives alone in a condominium in Etobicoke, and can only walk short distances due to her health and knee pain. She relies on her truck to be engaged socially, to visit her granddaughter (who is currently coping with health issues) in Milton several times per week, attend medical appointments, and get all her household needs.

15Since the impoundment, she has relied on Uber for her transportation needs. She is unable to use TTC public transit because it requires too much walking (the nearest transit stop is about two blocks away) and it would be difficult to carry any supplies. The appellant testified that she has not looked into the TTC Wheel-Trans service.

16The appellant testified that her nearest family members live in Mississauga, more than 30 minutes drive away, and they are all busy with their own lives. For these reasons, she has not considered asking them for assistance with transportation while her truck is impounded. The appellant testified that she cannot seek help from her friends for her transportation needs because they are also seniors and they are coping with their own constraints.

17The appellant has not looked into renting a vehicle because she expects it would be unaffordable. She lives on a limited income of OAS, GIS and CPP. She testified that the impoundment fees will be a financial hardship. She limits her use of Uber because of its expense.

18The appellant canceled one medical appointment due to the impoundment and will reschedule it when she gets her vehicle back.

19The appellant testified that the impoundment is causing additional mental stress and anxiety because she can no longer socialize and she is unable to visit her granddaughter three to four times per week. She has not looked into alternative transportation to get to/from Milton because she expects the distance will make Uber unaffordable and transit options such as GO Train will require too much walking.

20The respondent submits that the appellant has access to other means of transportation during the impoundment. She is using Uber as needed and has access to public transit services.

21The respondent submits that the appellant has not looked into other alternatives to the impounded vehicle such as renting a vehicle and transit options for persons with mobility limitations. It submits that the appellant faces no risks to health and safety and was able to postpone the one medical appointment she was scheduled to attend. The respondent seeks confirmation of the impoundment.

22I find the appellant has not demonstrated that the impoundment will result in exceptional hardship. Exceptional hardship is a high ground to reach. As noted above, the appellant must have no reasonable alternative to the impounded vehicle before the Tribunal may consider other consequences such as economic loss or threats to health and safety. In this case, the appellant has alternatives such as Uber or taxi services, and public transit.

23In considering whether there is no alternative, I must also consider, pursuant to s. 10(4) of the Regulation, whether the appellant has explored and looked into all reasonable options to the impounded vehicle, including managing without it.

24I find the appellant has not inquired and looked into all the reasonable alternatives to the impounded vehicle that would allow her to manage without the impounded vehicle. For example:

(i) Wheel-trans or other public/community transportation services for persons with mobility limitations;

(ii) Renting a vehicle; or

(iii) Seeking the assistance of friends and family.

25I recognize that managing without the impounded vehicle causes disruption, inconvenience, and additional expense; however, inconvenience cannot be considered in determining whether the impoundment is resulting in exceptional hardship, and economic loss and threats to health and safety can only be considered where there are no alternatives.

26I find the appellant does not meet her burden in proving that the impoundment will result in exceptional hardship.

CONCLUSION

27I find the impoundment will not result in exceptional hardship in relation to s. 50.2(3)(d) of the Act and s. 10 of the Regulation.

ORDER

28Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.

Bruce Stanton

Adjudicator