Licence Appeal Tribunal File Number: 16876/MVIA
In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Shelley Colekessian
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION and ORDER
VICE-CHAIR:
Geneviève Painchaud
APPEARANCES:
For the Appellant:
Shelley Colekessian, Self-represented
For the Respondent:
Leila Pereira, Agent for the Registrar
Heard by Teleconference:
April 22, 2025
OVERVIEW
1Shelley Colekessian (the “appellant”) appeals the impoundment of her 2020 Toyota 4Runner on March 9, 2025, for 45 days under s. 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 in accordance with s. 50.2(3)(d) of the Act.
ISSUE
4The issue in dispute is:
i. Will the impoundment result in exceptional hardship?
RESULT
5Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant established, on a balance of probabilities, exceptional hardship pursuant to the legislation and regulations. The appeal is allowed, and the vehicle is ordered released.
ANALYSIS
Circumstances leading to the impoundment
6Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was under suspension for certain 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 Virgilio Alejandro Siliezar, the appellant’s boyfriend. The Registrar presented unrefuted evidence that Mr. Siliezar’s driver’s licence was under suspension for a prescribed Criminal Code offence at the time the vehicle was detained in order to be impounded pursuant to s. 55.1 of the Act . Accordingly, the vehicle was lawfully impounded.
The impoundment will result in exceptional hardship
8I find the impoundment will 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 exceptional hardship, by considering whether it 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.
12The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if the owner demonstrates the following:
a. no alternative to the impounded motor vehicle is available;
b. the loss will be immediate, significant and lasting;
c. the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
d. the impact of the loss,
i. will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
ii. will not be a result of a loss by the suspended driver of the type set out in the clause (2) (b), (c) or (d).
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.
14The Tribunal can never consider whether the impoundment will result in inconvenience to a person.
15The appellant submits that she has looked at every possibility for alternate transportation. She does not have another vehicle that is functional, her boyfriend does not have a car, her parents are deceased, her brother lives far away, and she does not have a great relationship with her sister. She does have a friend that could possibly allow her to use her car but unfortunately their work schedules do not coincide, and her friend needs her car for work. She has studied in detail the option of public transit, but while not impossible to use, she would need to take a public bus, then a GO bus, then a train, and then a subway to get to work, which would get her to work late and entail her leaving early thereby would jeopardize her employment as a customer service manager. She has looked into the precise cost of renting a car but was unable to afford it as her credit card is maxed out.
16The appellant testified that she has not been able to go to work since the impoundment. She has used up vacation days, personal days and bonus days and took vacations days in advance of earning them with special permission. She also went without an income for a two-week period. Her boyfriend does not have a stable job and provides her with $300.00 to $500.00 per month towards rent and expenses of their blended family. She receives a $300.00 per month child tax benefit and the balance left from her income after paying rent is less than $900.00 per month. The appellant added that her boyfriend has been getting rides from a colleague to get to work.
17The Registrar submits the appellant does not meet the criteria for exceptional hardship and seeks confirmation of the impoundment. The appellant has other methods of transportation available to her as she can use public transit and has used Uber or walked to get groceries. Also, she has been paid for work, except for two weeks and her family needs are being met.
18I find the appellant has met her burden in demonstrating exceptional hardship.
19I find the appellant has demonstrated that there are no alternatives to the impounded vehicle available to her. While she has been able to ensure her personal family needs are being met because some things are within walking distance, she has been unable to get to work for the past 6 weeks because taking public transit is not an alternative to get to work as the public bus, GO bus, train and subway combination and scheduling would have her be late for work every day and leave early as well. This would put her employment in jeopardy. Taking public transit is not an alternative to the impounded vehicle based on where she lives and works. She has looked in detail at the cost of renting a car and she does not have enough savings nor credit to rent a car.
20In not being able to go to work for the past six weeks, I find the loss was immediate and significant and lasting due to the significant impact on her situation. The loss has been mainly upon the appellant and her ability to get to work and not her boyfriend who is driven to work by a colleague.
21I find that the appellant has proven that there are no alternatives to the impounded vehicle available and allow her appeal under the Act.
CONCLUSION
22I agree with the appellant that she does not have reasonable alternatives to the vehicle during the period of impoundment. I also find that the loss to the appellant is immediate, significant and lasting. As such, the appellant has satisfied the Tribunal on a balance of probabilities that she meets the test for exceptional hardship as set out in the Regulation.
ORDER
23For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I allow the appeal and order the release of the appellant’s vehicle on the grounds of exceptional hardship.
Geneviève Painchaud
Vice-Chair
Released: April 23, 2025