Licence Appeal Tribunal File Number: 16564/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:
Charleen Whibley
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION and ORDER
VICE-CHAIR: Robert Maich
APPEARANCES:
For the Appellant: Charleen Whibley
For the Respondent: Sadia Ashraf, Agent for the Registrar
Heard by Teleconference: December 27, 2024
OVERVIEW
1Charleen Whibley (the "appellant") appeals the impoundment of her 2015 Ford Escape on December 10, 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 grounds that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).
ISSUES
4The issues in dispute are:
i. Will the impoundment result in exceptional hardship?
RESULT
5I find that the impoundment will not result in exceptional hardship. The Registrar's impoundment of the vehicle is confirmed.
ANALYSIS
Circumstances leading to the impoundment
6Under s. 55.1 of the HTA, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.
7At the time the appellant's vehicle was detained, it was being driven by Joshua Campbell Brown ("driver"), friend of the appellant. The respondent presented unrefuted evidence that the driver's licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained. Accordingly, the vehicle was lawfully impounded.
Exceptional Hardship
8I find the impoundment will not result in exceptional hardship.
9Ontario 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.
10Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle.
11Only 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.
12Further, 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.
13In 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.
Evidence
14The appellant testified that she lives with her son in Hanover, Ontario. She is currently off work and needs her car to attend her work. She operates a concession stand in an arena in Chelsey, Ontario with her sister. She must attend her work and cannot work remotely; she normally attends work at least four times a week. In addition, she must travel to Owen Sound once a week for supplies to operate the concession. She also fears that if she does not reopen the concession stand soon she will lose the contract.
15The appellant acknowledged that there is car rental available, but she is unable to afford this option as her income is low at $300 to $400 per week. The appellant states she will not be able to go to work as no ride is available for her. Both her and her sister were dependent on the impounded vehicle for work. Their father purchased the impounded vehicle to help them and cannot assist them with a ride as he works elsewhere.
16The appellant further testified that groceries were obtained with assistance, but they are unable to continue assisting her due to their own limitations. She has no other friends or family that are able to assist her further.
17The appellant stated in her closing argument that her vehicle was very important to her to maintain the necessities of life; she stated no other method of transportation is feasible for her circumstances as other options are unaffordable. The appellant also stated she is concerned the impound fees will be detrimental to her.
18The respondent submits the appellant does not meet the criteria for exceptional hardship and seeks confirmation of the impoundment. The respondent submitted the appellant has other methods of transportation available to her by car rental. The respondent also submits that the appellant has not missed any medical appointments due to the impoundment. Further, the appellant has been able to obtain groceries since the impoundment, and the appellant has not missed any medical appointments.
19I find the appellant has not demonstrated that there are no other alternatives to transportation available, nor demonstrated a threat to the health and safety of the appellant or her family as a result of the impoundment.
20I find that the appellant has not met her burden of proof to establish hardship as an alternative form of transportation is available.
CONCLUSION
21I find the appellant has not met her burden in proving, on a balance of probabilities, that the impoundment will result exceptional hardship pursuant to s. 50.2(3)(d) of the Act and s. 10 of the Regulation.
ORDER
22Pursuant to subsection 50.2(5) of the Act, I confirm the Registrar's impoundment of the vehicle.
Robert Maich Vice Chair
Released: January 13, 2025