Thushani Ironika Ondaatje v. Registrar of Motor Vehicles, 2024 CanLII 88899

Licence Appeal Tribunal File Number: 16136/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:

Thushani Ironika Ondaatje

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Thushani Ironika Ondaatje

For the Respondent:

Sadia Ashraf, Agent

Heard:

August 21, 2024

OVERVIEW

1The appellant, Thushani Ironika Ondaatje, appeals the 45-day impoundment of her 2017 BMW motor vehicle 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 August 1, 2024, after police found it being operated by her common law partner, L.P., while his licence was under a Criminal Code suspension.

3The appellant recounted that L.P. was approached by police while on the driveway of her home. She states that she came outside to investigate what was going on and informed of the situation. She asked police if the vehicle could remain in her custody, however, they denied her request and it was removed for impoundment.

4The appellant states that L.P. took the vehicle without asking her that day. Despite this, she is not appealing on the basis that the vehicle was stolen. This was confirmed at the hearing. She also did not deny any knowledge of his driving suspension and simply states she did not want to argue with him for taking the vehicle. Instead, she argues that the impoundment will cause exceptional hardship.

5Subsection 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, L.P.’s driver’s licence was suspended following a conviction of driving with more than 80 mgs of alcohol in 100 ml of blood on May 24, 2024, contrary to the Criminal Code. His licence is under suspension until May 24, 2025.

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

8I find that the appellant has failed to show that the impoundment will cause exceptional hardship for the reasons which follow.

9As 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.

10Section 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.

11The 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. As detailed below, the appeal fails and I confirm the impoundment.

12It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that L.P. was in the driver’s seat at the time it was impounded. The appellant states that she has four adult children, 3 of whom live with her. Her mother is also visiting for an extended period of time. From the onset of the hearing, the appellant argued that she has experienced hardship as a result of the impoundment. She states that she uses the vehicle to transport different members of her family to work, personal and medical appointments. I am not convinced that this case involves exceptional hardship for one of several factors, most importantly, the fact that she has another vehicle (a 2019 Porsche) which she has been using since the impoundment of the BMW.

13The appellant stated that she is trying to avoid using the Porsche and would prefer to preserve its use and the number of kilometers driven on it. She confirmed that as the owner, she has free and available access to the Porsche and can use it in the event of an emergency.

14In addition to this, the appellant states that she and her family members have access to public transit, Uber and taxi. They have been taking advantage of those modes of transportation during this time. During the hearing, the appellant did state that the Porsche is too low for her mother to climb in and out of. However, she has been trying her best to make do under the circumstances. She states that her mother did have an appointment which she was unable to attend which she attributes to not having the BMW available, however, she was able to subsequently conduct that meeting by phone. Aside from this, I did not receive evidence to prove that anyone else who normally depends on the car have missed any appointments, employment or been placed in a situation that would jeopardize their health and safety as a result of not having the vehicle.

15The appellant advised that she has a dog grooming business which she operates from home. The loss of her vehicle has not impacted her ability to work due to the fact that clients bring their pets to her place of residence. As for her daughter who would depend on rides to and from work by the appellant, she has been able to obtain a ride from friends, take public transit or Uber.

16The appellant also stated that she would occasionally get a ride from her neighbour to get groceries or attend Costco for items for her family. She stated that in other instances, her daughter has been able to obtain items online. The appellant acknowledged during the hearing that the loss of her BMW has been more of an inconvenience than for any other reason.

17As a result of having alternate transportation, namely another vehicle in her name and obtaining rides by other means, the appellant has been able to continue to care for her family with very minimal disruption to her daily obligations.

18Since the appellant has failed to meet her burden under s. 10(4) of the Regulation to show there are no reasonable alternatives to the impounded vehicle, her appeal based on exceptional hardship must be dismissed.

ORDER

19For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.