Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-02

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

K.C.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Theodore Crljenica

Appearances:

For the Appellant: K.C., personally

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference

September 26, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1A hearing was held on September 26, 2017, by teleconference, to consider the appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).

2The appellant’s vehicle was impounded on August 22, 2017. A Notice of Impoundment was issued for a period of 45 days. The Notice of Appeal was filed August 28, 2017.

3The appellant’s ex-spouse was driving the appellant’s vehicle at the time of the impoundment. He was driving the vehicle while his licence was under suspension as a result of a Criminal Code conviction.

4In her Notice of Appeal, the appellant appealed on the basis that the vehicle had been taken by her ex-spouse without her knowledge or consent and that the impoundment of her vehicle will result in exceptional hardship. The Order made following the case conference in this matter limited the appeal to the issue of exceptional hardship. The appellant confirmed during the hearing that her appeal is only on this basis.

5For the reasons set out below, I find that the appellant has not made out a case of exceptional hardship. Accordingly, I confirm the impoundment.

ISSUES:

6Did the appellant establish exceptional hardship on a balance of probabilities?

EVIDENCE

7The appellant testified that she is a single mother with two infant children, a two year old son and a six month old daughter. She is employed but currently on maternity leave.

8In regard to the impact the impoundment has had on her, the appellant testified that she has cancelled the recreational/educational classes in which she had enrolled her children, cancelled the medical appointment at which her daughter was to receive her six-month round of vaccinations and at which her son was scheduled for a check-up. She also testified that the absence of a vehicle makes it difficult for her to pick up groceries.

9The appellant lives in a small community. Her parents live near her, in the same community. The parents have two vehicles but both work full time in other communities. One parent works until four p.m. and the other until five p.m. The appellant testified that since the impoundment she has borrowed her parents’ cars in the evenings and weekends to pick up groceries. She was able to reschedule her daughter’s medical appointment to a Saturday and borrowed one of her parent’s cars to attend the appointment. Thus, her daughter received her vaccinations and her son had his check-up.

10When asked by the Registrar’s representative about driving one of her parents to work so that she could have a vehicle during the day, the appellant testified that this is not practical and that she does not want to inconvenience her parents.

11The appellant owns another vehicle, a 1986 vehicle which she purchased in May 2017 that she and her father intend to restore. She testified that although this vehicle passed a safety test at the time of purchase, exhaust fumes leak into the passenger compartment, the head on the motor leaks and the front end suspension requires work. She will not drive her children in this vehicle as she feels that it is not safe. As she is receiving 55% of her regular pay during her maternity leave, she cannot afford to have this vehicle repaired at this time.

12The appellant is concerned that should one of her children require emergency medical care during the day while her parents are at work the closest hospital is 30 kilometres away. She testified that it would take EMS 30 minutes to reach her home and another 30 minutes to return to the hospital.

ANALYSIS

13Pursuant to section 10 of O. Reg. 631/98 when considering the facts of this appeal, to establish exceptional hardship, this Tribunal must consider if this appellant has proven on a balance of probabilities that there is no alternative to the impounded vehicle available.

14Subsection 10(4) of the regulation provides that in order to show that no alternative to the impounded motor vehicle is available the appellant must demonstrate that she has considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss to herself or her children, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

15It is my determination that the appellant has not established that there is no alternative available to her. She has been able to borrow a vehicle from her parents to do her grocery shopping and to take her children to their medical appointments. Although this may be an inconvenience to her parents, subsection 10(2)(a) of the regulation precludes this Tribunal from considering “inconvenience to any person”.

16Although the appellant’s concern for her children’s welfare should a medical emergency arise while the appellant’s parents are at work is legitimate, the appellant has not established that she has considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss to herself or her children.

17When asked whether she has considered driving one of her parents to work so she could have that parent’s vehicle on hand should an emergency arise, the appellant responded that she does not want to inconvenience her parents. Again, inconvenience to any person is not a basis on which this Tribunal can make a finding of exceptional hardship.

18The appellant has not indicated if she has inquired into other options to transport her children to the nearest hospital, such as friends, neighbours or the presence of a fire service in or near to her community could transport a child to the hospital.

19In any event, I do not accept that it would take EMS 30 minutes to travel 30 kilometres to the appellant’s home. The community in which she lives is adjacent to a highway. Most of the route from there to the community in which the hospital to which the appellant referred in her testimony is located is via three provincial highways with speed limits of 80 km/hr, 90 km/hr, and along highway 401, 100 km/hr.

20To complete my analysis, I agree with the appellant that the 1986 automobile is not a realistic option due to its current unsafe condition.

21For these reasons, it is my determination that the appellant has not proven on the balance of probabilities that her case meets the test of exceptional hardship as set out in section 50.2 of the HTA and regulation 631/98.

ORDER

22I confirm the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.

LICENCE APPEAL TRIBUNAL

_________________________

Theodore Crljenica, Member

Released: October 2, 2017