Generoso Velocci v. Registrar of Motor Vehicles, 2024 CanLII 88895

Licence Appeal Tribunal File Number: 16199/MVIA

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

Between:

Generoso Velocci

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Generoso Velocci Sheila Velocci, spouse

For the Respondent: Leila Pereira, Representative

HEARD: September 6, 2024

OVERVIEW

1The appellant, Generoso Velocci, appeals from the 45-day impoundment of a 2011 Mazda motor 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 August 21, 2024. At the time of the impoundment, the appellant's son Danial Velocci was driving the vehicle while his licence was suspended.

2At the outset of the hearing, the appellant advised that he had rotator cuff surgery the day prior, on September 5, 2024, and he was medicated. He wished his wife to assist him during the hearing especially with regards to his technology use. He did not wish to adjourn the hearing. The respondent objected and took the position that if the appellant intended his spouse to speak then he should have notified the Tribunal in advance, and there were many opportunities to do so. After considering the submissions of both parties, I allowed the appellant's spouse to assist him during the hearing given his surgery the day prior and his stated desire to proceed with the hearing.

3The appellant appeals on the ground that the impoundment will cause exceptional hardship.

ISSUES

4The issues in dispute are:

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

RESULT

5I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

6The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2011 Mazda motor vehicle (the "vehicle");

ii. on August 21, 2024, the police discovered the impounded vehicle being driven by Danial Velocci (the "driver"); and

iii. Danial Velocci's driver's licence was under suspension for a Criminal Code conviction at the time it was impounded.

Whether the impoundment will result in exceptional hardship

7The 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 his burden.

8Section 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.

9Subsection 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.

10If 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.

11If 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.

12I find the appellant has alternative means of transportation available to him. The appellant testified that, since the impoundment, he and his spouse have been using a second vehicle registered in his name, a 2018 Ford motor vehicle (the "Ford vehicle"). He testified that the Ford vehicle is his spouse's primary vehicle and he normally drives the impounded vehicle.

13The appellant testified that there are three residents in the home, his spouse, the driver and himself. The appellant has not worked since October 2023 given his shoulder issues, and has been receiving disability payments. He testified that, given his surgery, he is not permitted to drive for about three weeks.

14The appellant testified that his spouse works as a school bus driver five days a week and she uses the vehicle to attend for work. She is usually out of the residence for about three hours in the morning and three hours in the afternoon. He testified that, since the impoundment, he and his spouse have been utilizing the Ford vehicle to run errands, obtain groceries and prescriptions, and to attend for his surgery.

15He has not used Ubers or taxis and has relied upon the Ford vehicle for essential tasks.

16I find the evidence before the Tribunal establishes that there are alternative means of transportation available to the appellant. I find that the evidence establishes that, since the impoundment, the appellant has used his second vehicle, the Ford vehicle, to complete his essential tasks including attending for his surgery, obtaining prescriptions and groceries. While relying upon the alternative vehicle may not be convenient as it is unavailable for several hours of the day and is his spouse's primary vehicle, nonetheless, this alternative form of transportation was used regularly. I further note the appellant is not permitted to drive for about three weeks given his surgery. Once he is allowed to drive, he will have access to the alternative vehicle.

17Under 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.

18Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

19On 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.