Date: 11-22-2019

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:

Linda Dale

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Linda Dale

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By teleconference November 12, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1A hearing was held on November 12, 2019, 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").

2The appeal was brought by Linda Dale, who is the widow of Mr. Suddes, the registered owner of the impounded vehicle. Mr. Suddes passed away on September 12, 2019. The death was sudden, and Mr. Suddes died without a will.

3Mr. Suddes' vehicle was impounded on October 2, 2019. The Appellant let a friend of her deceased husband's to borrow the vehicle, without knowing that the friend's licence was under suspension. The vehicle in question is still registered under her husband's name as the Appellant does not know how to transfer the ownership and is facing a number of challenges at the present moment.

4The Appellant appealed the impoundment on the ground that it will result in exceptional hardship.

5For the reasons set out below, I confirm the impoundment.

B. ISSUES:

6The issue under the appeal is whether the impoundment resulted in exceptional hardship.

7At the hearing, the agent for the Registrar also challenged whether the Appellant has standing to appeal the impoundment.

C. Preliminary Issue of Standing

8For reasons that are unclear, the issue of standing was not raised nor addressed in the Case Conference Order dated October 31, 2019.

9Relying on the HTA, including s. 50.2(1), the Registrar argued that only the owner of a motor vehicle that is impounded can appeal the impoundment to the Tribunal. As the Appellant is not the owner, the Registrar argued she does not have the standing to appeal that decision. The Registrar also referred to a number of other provisions in the HTA which reference "the owner" of the vehicle under the grounds of appeal, and a number of provisions dealing with the impoundment.

10The Appellant, who was unrepresented, did not make any direct argument with respect to her right to appeal the impoundment. Instead, she explained that she has not yet taken any step to transfer the ownership as she did not know how to go about doing it. The Appellant lives by herself. While she has a driver's licence, she has not driven in years. Prior to her husband's death, she relied on her husband to drive her around. Since his death, the Appellant has to rely on the goodwill of neighbours to give her rides when necessary and if they are free. The Appellant has mobility and walks with a cane. Due to her financial difficulties, the Appellant has not yet paid for her husband's funeral, and she has no money to pay for the impoundment. The Appellant hopes to recover the vehicle, sell it, and then pay for a proper burial.

11Section 50.2(1) of the HTA reads as follow:

50.2(1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.

12On its face, s.50.2(1) appears to restrict the right to appeal only to the owner of the vehicle. However, the term "owner" is not defined in the HTA. It is reasonable to assume that the owner of the vehicle refers only to the registered owner. In this case, the registered owner has passed away and the ownership has not been transferred. If we apply s.50.2(1) strictly, it would mean that the owner of the vehicle would be the estate of the deceased. Unfortunately, Mr. Suddes died intestate.

13But as the Registrar pointed out during the hearing, the Appellant, who is the surviving spouse, can apply to the Ministry of Transportation to transfer the ownership of the vehicle. For reasons set out above, the Appellant does not have the wherewithal to do so.

14It is worth repeating that the issue of standing was not raised at the Case Conference. Had it been raised, the Appellant could have addressed this issue earlier by taking the necessary step to transfer the ownership to her name, and thereby fulfilling the requirement under s.50.2(1) of the HTA.

15Given that the Appellant is the surviving spouse of her husband, and would therefore be able to transfer the ownership of the vehicle to her name, I deem the Appellant to be the "beneficiary owner" of the impounded vehicle for the purpose of this appeal, and as such, the Appellant has the right to appeal the impoundment.

16I note that 3.1 of the Rules of Practice and Procedures of the Tribunal (LAT Rules) provides that the LAT Rules will be "liberally interpreted and applied" in order to:

a) Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative; and

b) Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

17In this case, due to the sudden death of her husband and the ongoing challenges as a result, the Appellant has not been able to transfer the ownership of her husband's vehicle. However, she is the one who has to bear the burden of the impoundment.

18In my view, it will be fundamentally unfair to dismiss this appeal on the issue of standing, and thus depriving the very person who is most affected by the outcome an opportunity to present her case. Further, it will not be efficient nor proportional to expect the Appellant to seek an adjournment of the hearing, arrange for the transfer of ownership of the vehicle and return to the Tribunal to appeal the impoundment. Requiring a destitute Appellant to take all these steps before she can appeal the impoundment of her deceased husband's vehicle is far from a "timely resolution" of the case.

19For all these reasons and in light of the very special circumstances of this case, I find the Appellant has standing to appeal the impoundment.

D. EVIDENCE:

20In addition to the circumstances as outlined above, the Appellant also gave evidence that she is retired and is relying solely on her pension income. Her husband's death has meant the loss of income support to the Appellant. While the Appellant does have a daughter, she has not seen her for over 7 years and cannot rely on her for financial or other support.

21The Appellant needs assistance with grocery shopping and doctor's appointments. Before he passed away, her husband drove the Appellant to all her appointments and grocery shopping. Since his passing, the Appellant can only rely on the help of neighbours for grocery, and the Canadian Red Cross for medical appointments. If the neighbours are not available, however, the Appellant must take a taxi. The Appellant cannot walk due to her arthritis. Even with a cane, walking is difficult.

22The Registrar gave evidence at the hearing and clarified that the licence of the driver who triggered the impoundment has been suspended since 2018. In any event, the Appellant is not challenging the legality of the impoundment.

E. LAW:

23Under 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.

24Subsection 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.

25Section 10 of O. Reg. 631/98 (the "Regulation") is very specific and sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements.

26If no alternative is available, then I shall consider 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. O. Reg. 456/10, s. 3.

27Pursuant to s. 10(2) of the Regulation, the Tribunal may not consider whether the impoundment will result in inconvenience, financial or economic loss; or loss of employment or employment opportunity to any person.

28Under s.10(3), I may consider financial or economic loss, loss of employment or employment opportunity, or loss of education or training, or of an education or training opportunity to any person if:

(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). O. Reg. 456/10, s. 3.

29Finally, pursuant to s.10(4), in order to show that no alternative to the impounded motor vehicle is available, 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.

30The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

31Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

F. ANALYSIS:

32There is no doubt the death of her husband has affected the Appellant in many ways, financially and otherwise. As a result of his death, the Appellant has to rely on others to do grocery shopping, and to attend medical appointments. The impoundment of her deceased's husband's vehicle increases the impact of his death by adding further financial burden on the Appellant.

33The Appellant does not own any vehicle and is not in any position to drive due to her ill health.

34The Registrar argued there is alternative to the impoundment because of the help from the neighbours and the Red Cross. As well the Registrar argued when determining whether there is an alternative to the impoundment, I cannot consider if the impoundment has resulted in financial cost to the Appellant.

35I find that the financial crisis facing the Appellant right now is not caused by the impoundment per se, but by the death of her husband. His death has led to the loss of income, and has triggered all the additional financial burden that the Appellant is not in a position to shoulder.

36However, I find that the Appellant does have alternative to the impounded vehicle. Before her husband's death, he was her driver. Since her husband's passing, the Appellant has some good neighbours she could call on, and if they are not available, she will have to call a taxi. For all her medical appointments, the Appellant can rely on the Canadian Red Cross.

37In view of the above, I find that the Appellant has not established there is no alternative to the impounded vehicle and that she will suffer exceptional hardship as the term is defined under the Act.

38While I appreciate this is a very difficult situation for the Appellant and the outcome may not be what she hopes for, I note that the Appellant's plan is to sell the impounded vehicle, which may alleviate some of the financial stress she is facing.

ORDER:

39For 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.

LICENCE APPEAL TRIBUNAL

____________________________

Avvy Go, Member