H.S. v. Registrar of Motor Vehicles, 2018 CanLII 100197

DECISION AND ORDER

Date: 2018-06-14

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 for driving while suspended

Between:

H.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

Panel: Avvy Go, Member

Appearances:

For the Appellant: H.S., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By teleconference

May 31, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1A hearing was held on May 31, 2018, by teleconference, to consider the appeal of the Appellant 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 first impounded on February 11, 2017 when her son drove the vehicle while his licence was under suspension. The Appellant filed an appeal to this Tribunal and the Tribunal confirmed the impoundment.

3Just over a year later, the Appellant's vehicle was impounded again on April 22, 2018 for a period of 90 days, because her son again drove the vehicle while his licence was under suspension.

4The Appellant appealed the second impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. The Appellant lives in a community in Northern Ontario where access to her medical appointments, grocery shopping, and visits to her mother all require the use of a vehicle.

5While I find there is exceptional hardship as a result of the impoundment, the statute prohibits the consideration of the Appellant's hardship because there was a previous impoundment with respect to the Appellant's vehicle. As such, I confirm the impoundment.

B. ISSUES:

6The issues under the appeal are as follow:

Can the Appellant appeal the impoundment based on exceptional hardship? If so, will the impoundment result in exceptional hardship?

C. EVIDENCE:

7The Appellant, who is Indigenous, lives in a small off-reserve community located about 3.5 hours drive from Sioux Lookout. She has a health condition and is required to travel to the community health clinic on reserve about 30 km away on a weekly basis for check-up.

8Because the Appellant cannot drive to the community health clinic by herself, the doctor at the clinic has arranged for the medical vehicle to drive the Appellant to and from the clinic, even though normally the medical vehicle is reserved for the patients on reserve only.

9The Appellant lives with her grandchildren, and takes them to school every day.

10As a result of the impoundment, the Appellant can no longer drive her grandchildren to school; they have to walk instead.

11The Appellant's mother lives alone in a camp further north. Before her vehicle was impounded, the Appellant visited her mother on a weekly basis to help her with various chores, including chopping wood. During this period of impoundment, the Appellant's brother – who lives about an hour and half away from their mother – has agreed to step up and take over the care of their mother. However, at some point in the future, the Appellant's brother will have to return to work and will no longer able to help out.

12The biggest challenge faced by the Appellant is grocery shopping. Because of her health condition, the Appellant has been advised by her doctor to maintain a healthy diet consists of fresh vegetables, which are not available in her local community. To get fresh produce, the Appellant has to travel to Dryden, about 5 hours away from her residence.

13Not only is the food price much higher in her local community, the Appellant also cannot buy fresh vegetables that she needs in order to maintain her health. The Appellant has not asked her brother for assistance in this regard because he is already taking on the task of caring for their mother, while he has his own family to take care of. The Appellant does not know anyone in her local community as all of her friends live on reserve, which is located about 30 km away. The Appellant explained it is hard to ask others to help her with grocery shopping because many of her friends are themselves without vehicle, and for those who do have one, they have others with them when they go shopping.

D. LAW:

14Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years. If there is a previous impoundment, the impound period is 90 days.

15Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraph (d) of subsection 50.2(3) which states:

50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

16Subsection 50.2(4) states that an owner may not rely on the ground of exceptional hardship if a vehicle owned by him or her has previously been impounded.

17Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. 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.

18If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) 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.

19In limited circumstances described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

a. financial or economic loss to any person;

b. loss of employment or employment opportunity to any person; or

c. loss of education or training or of an educational or training opportunity to any person

20The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

(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).

21Pursuant to s.10(2) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

22Following a hearing, under s.50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

23The impoundment clearly has affected the Appellant in different ways. While for many of the challenges, the Appellant has found alternatives to the impounded vehicle (e.g. having her brother look after her mother, and arranging for medical vehicle to attend weekly appointments), the Appellant has no reasonable alternative when it comes to shopping for fresh produce. The Registrar argued that "it makes no sense" for the Appellant to not rely on her brother and her friends to help her with grocery shopping. In my view, the Registrar has under-estimated the challenge facing someone like the Appellant who lives in a remote community in the north. The point of having fresh produce is that the Appellant needs to make frequent trips to the larger centres to do her grocery shopping for nutritious food in order to keep her medical condition in check. Even assuming that the Appellant may be able to impose on her friends and her brother occasionally, the Appellant will still be at the mercy of others and her access to the fresh produce will still depend on others' schedules and availability. Besides, the Appellant has offered a reasonable explanation as to why these options are not available to her. It is unreasonable to expect that the Appellant's brother and friends would be willing to take a 10 hour roundtrip to Dryden on a regular basis to help the Appellant buy fresh produce. Without her vehicle, the Appellant is deprived of access to healthy food, which in turn negatively affects her health.

24If it were the first time that the Appellant's vehicle was impounded, I would have found sufficient exceptional hardship to grant the appeal. Unfortunately, because this is the second time that the Appellant's vehicle was impounded, the first time being just under a year ago, I am prohibited by section 50.2(4) of the HTA to consider exceptional hardship.

25While the Appellant was given an opportunity to reply to the Registrar's submission on s.50.2(4), the Appellant chose not to make any comment.

26Because exceptional hardship is the only ground of the Appellant's appeal, a factor I cannot consider, I have no choice but to uphold the impoundment.

ORDER:

27For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant's motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.