Licence Appeal Tribunal File Number: 16633/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Dustin McArthur
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
VICE-CHAIR: Jeremy A. Roberts
APPEARANCES:
For the Appellant: Dustin McArthur, Self-represented
For the Respondent: Leila Pereira, Representative
HEARD: 23 January 2025
OVERVIEW
1The appellant, Dustin McArthur, appeals from the 45-day impoundment of a 2024 Chevrolet Silverado motor vehicle (the "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 January 7, 2025.
2At the time of the impound, the vehicle was being driven by the appellant's girl friend, Ms. Jocelyn D'Auvernay, whose driving privileges were suspended as a result of a Criminal Code conviction.
3The appellant appeals on the ground that the impoundment will result in exceptional hardship.
ISSUES
4The issue in dispute is:
i. Will the impoundment of the appellant's vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?
RESULT
5I find that the appellant has not satisfied the Tribunal that the impoundment will result in exceptional hardship. Pursuant to s. 50.2(5) of the Act, I confirm the impoundment of the appellant's vehicle.
ANALYSIS
The appellant has not demonstrated that the impoundment will result in exceptional hardship
6I find that the appellant has not satisfied the Tribunal that the impoundment will result in exceptional hardship because the appellant demonstrated that he has access to reliable alternatives and the impoundment has not placed any individuals reliant on the vehicle in a health or safety risk.
7Section 10(1) requires the Tribunal to 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:
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.
8If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.
9The 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 clause (2) (b), (c) or (d).
10The Tribunal can never consider whether the impoundment will result in inconvenience to a person.
11The appellant argued that his family will face exceptional hardship as a result of the impound for the following reasons: (1) the impoundment puts at risk the health of his girlfriend's medically fragile 6-year old child, who relies on the subject vehicle to attend regular doctor's appointments and get to the hospital in the event of an emergency (the child was hospitalized briefly before the impoundment); and (2) the impoundment financially jeopardizes his family as it will prevent them from being able to put down a deposit on a new home they intend to move into as a result of their current residence having mould, which will force them to move out no later than April (when the landlord begins renovations and repairs).
12The respondent argued that based on the appellant's testimony, the appellant has ample access to alternative means of transportation. The appellant testified that both he and his girlfriend are able to walk to work (with trips of less than 30 minutes). Further, he testified that the children who reside with him are all able to walk to school. And lastly, he testified that the family has been able to attend all doctor's appointments and receive groceries and pharmaceuticals through either the assistance of family members or through the use of his company's van. The respondent argued that given these alternative means of transportation and given the fact that the medically fragile child's health has not been jeopardized during the impoundment thus far, the appellant has not met the criteria of "exceptional hardship".
13In considering the evidence, I agree with the respondent and find that the appellant has not demonstrated that the impoundment will result in exceptional hardship. In order to satisfy the Tribunal that the impoundment will result in a threat to the health or safety of the medically fragile child under his care, the appellant must first demonstrate that he has considered reasonable alternatives as defined. In this situation, the appellant testified that he has access to several alternative means of transportation, including family members or the company van that could ensure that the child attends required medical appointments. As such, I find that the appellant does have alternative options to the impounded vehicle and thus does not satisfy the test for exceptional hardship.
14Moreover, when considering the financial or economic loss that would result from paying the impoundment cost, the appellant would have to demonstrate that no alternative to the impounded vehicle is available. As laid out above, the appellant testified that other alternatives do exist. As such, I find that the appellant has not proved that the financial or economic loss sustained can be considered under the criteria enumerated in O. Reg. 631/98 s. 10(3).
ORDER
15I order the following:
i. Pursuant to s. 50.2(5) of the Act, I confirm the impoundment of the appellant's vehicle.
Released: January 27, 2025
__________________________
Jeremy A. Roberts
Vice-Chair