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:
K.P.
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: March 5, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on March 5, 2018 to consider the appellant’s appeal of the impoundment of her 2011 Dodge (the “vehicle”) on January 24, 2018 for 45 days. The impoundment period ends on March 10, 2018.
2The appellant has appealed on the ground that the impoundment will result in exceptional hardship to her because she needs the vehicle for basic day-to-day needs as well as to attend a variety of medical appointments, and she cannot afford the impound fees.
B. ISSUE:
3The issue to be determined is whether the Tribunal should order the release of the vehicle on the basis that the impoundment will cause exceptional hardship.
C. CONCLUSION:
4I find that the appellant’s evidence supports a finding that the impoundment results in exceptional hardship.
D. LAW:
5The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles.
6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the HTA. In this case, the appellant appeals on the basis of paragraph (d) – that the impoundment will result in exceptional hardship. The appellant must present evidence to prove her appeal on a balance of probabilities.
7Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining the outcome of an appeal under this section. The Tribunal must consider whether no alternative exists for 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.
8If there is no alternative, then the Tribunal can 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.
9In limited circumstances described below, I 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
10The 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).
11The regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
E. EVIDENCE
12In her evidence, the appellant explained that she is a single mother and the sole provider for her son. The documents filed by the Registrar indicate that her son will soon be 22 years old. She described her son as being “on the spectrum”. She has filed a letter from their psychiatrist which states that he has significant disabilities and is on medication which helps his moods. In the information which she provided to the Registrar, and filed with the Tribunal by Mr. Kapur, she stated that her son suffers from severe stress and panic attacks. For this, he has a prescription for medical marijuana and she must travel to a location in Toronto (from their home in Richmond Hill) to fill that prescription. She stated that her son has never been a licensed driver due to his current disabilities. He did, however, take her car in August 2016 which resulted in a Criminal Code conviction, with a licence suspension until May 2018.
13From the information provided by the appellant, it appears that she drives her son virtually everywhere he needs to go, including his monthly appointments with his probation officer, because he is not able to walk in the neighborhood due to a risk of being bullied and possible harm. This issue was also referenced by the psychiatrist.
14The appellant was in a motor vehicle accident in 2012 and has not worked since. She relies on the Ontario Disability Support Program (ODSP) payments in the amount of $934/month. From this, she must pay rent, food and other essentials. Her vehicle is her only asset. She suffers from neck, back and leg pain and receives medical care from several different doctors. Because of her pain, she is unable to walk for more than 2-3 minutes. She does have an accessible parking permit for her vehicle.
15The appellant and her son see the same psychiatrist in Markham. It costs approximately $50 round trip to travel by Uber/Lyft from their home in Richmond Hill to the psychiatrist’s office. They see the psychiatrist monthly and she schedules their appointments on the same day. She cancelled their February appointments, but was at least able to speak to the psychiatrist by phone and have their prescriptions re-filled.
16The appellant also sees a doctor for her leg and vein pain. She had an ultrasound booked in February and kept that appointment but cancelled her appointment with the doctor who treats her for her leg issues for the morning of March 5, 2018 because of increasing costs of transportation. This appointment could not be re-booked until June 26, 2018. As part of her therapy to deal with her leg pain, she has been going to a pool about twice a week. She has been unable to continue with this without her car. Without treatment and therapy, it becomes increasingly difficult for her to walk.
17The appellant also explained that she needs to go to the dentist to have her teeth cleaned every four months due to the effect of her medications on her teeth. She has also been having tooth pain. But she cancelled her last dental appointment in early February to minimize her costs.
18The appellant has provided documentation regarding her Uber/Lyft rides both for medical appointments or to pick up groceries or supplies. Through questioning by Mr. Kapur, she stated that she has likely spent $400-$500 on transportation since the impoundment. She has no family in Canada, but has a friend who has helped out on occasion and given her rides to pick up groceries for example, though she has paid him to do so.
19There is public transit in Richmond Hill which she admitted that she has not used. She explained that she cannot take the bus because of an inability to walk to the bus stop and because the bus movement cause further pain in her neck and back. In addition, she explained that for personal and private reasons (which she did not feel comfortable disclosing) she does not take the bus. It has been many years since she last used public transit.
20Mr. Kapur questioned why the appellant did not pursue her eligibility for York Region’s “Mobility Plus” door to door accessible public transit service for persons with disabilities. The appellant stated that she was not aware of this service. Mr. Kapur questioned why she could not have made herself aware given what he perceived to be her apparent computer skills.
21As noted above, the appellant has provided considerable information and documentation, most of it in response to many detailed questions put to her by Mr. Kapur in emails during the month prior to this hearing. In one email, Mr. Kapur suggested that the appellant might wish to send daily emails to him setting out what she has spent on trips that she needed to do. I will not comment on whether the level and extent of inquiry by the Registrar’s agent was required or appropriate in these cases. However, it appears that the information she gave to Mr. Kapur was consistent with what she testified to at this hearing. One document she provided to Mr. Kapur, at his request, was her Visa statement. She has a $7000 credit limit with a current available credit of $134. Mr. Kapur, in submissions, stated that this amount was still available to the appellant to continue pay for transportation as needed. The appellant responded, not unreasonably, that she wanted to have some credit available to her in the event of an emergency. She did acknowledge that for a medical emergency, there is 911 services available in her area.
F. ANALYSIS
22The law is clear that I must first determine whether the appellant has a reasonable alternative to the impounded vehicle – are the options available to her reasonable.
23Given the evidence heard, I find that there is not a reasonable alternative to the impounded vehicle to meet the appellant’s very specific needs. The fact of her limited mobility is highlighted by her accessibility permit on her vehicle. Public transit is not just an inconvenience; rather, it seems that using it may exacerbate her health issues. While it is true that she did not explore disability focussed transit options, there is no evidence before me that indicates that service would have been available to her for the period of this appointment. The costs of taking Uber/Lyft are significant in relation to the appellant’s limited income.
24Having found that there is no reasonable alternative to the impounded vehicle, I must then, based on the evidence before me, determine whether there the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
25The appellant has a very modest income and is the sole support for her son. The evidence is that the appellant has a number of health issues to deal with. Since the impoundment of her vehicle, she has made it to some of her medical appointments, but not all. She has cancelled several medical appointments, the most impactful, in terms of her health is the doctor’s appointment for her leg issues which could not be rescheduled until June. As noted above, her mobility is already compromised and an inability to get to treatment presents a real threat that it may be even further reduced. She has incurred $400-$500 for transportation, which in her circumstances is not sustainable. Clearly with a Visa card almost at its maximum limit, the appellant is concerned about continuing to pay for rides to appointments.
26It appears too that her son is very dependent upon the appellant. Their situation appears complex. He requires regular visits to his psychiatrist and medication to keep him stable. Because of his personal issues he cannot simply take public transit. The appellant clearly has concerns, supported by the psychiatrist, for his safety and wellbeing should he walk in the neighbourhood.
27The ground of appeal must be proven on the balance of probabilities. Based on the impact on the appellant’s physical wellbeing- in particular her mobility, and the impact on her son in terms of his mental health and attendant risk, I find that in this instance, there is a threat to the health or safety of persons ordinarily transported by the impounded vehicle.
28I therefore conclude that the impoundment of the vehicle will cause exceptional hardship to the appellant as set out in section 50.2(3)(d) of the Act.
ORDER:
29Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: March 8, 2018```