1Citation: Carla Yvanni Arreola Dominguez v. Registrar of Motor Vehicles, 2019 ONLAT HTA MVIA/12414

Date: 2019-12-04

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:

Carla Yvanni Arreola Dominguez

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Adjudicator

Appearances:

For the Appellant: Carla Yvanni Arreola Dominguez

For the Respondent: Nora Challis, Agent

Heard by teleconference on: December 2, 2019

REASONS FOR DECISION AND ORDER

Overview

2The Appellant’s vehicle, a 2019 pick-up truck, was impounded on October 26, 2019. The Appellant’s sister had a medical emergency and had to be transported to the hospital. As the Appellant needed to stay home to look after her three young children, she let her husband drive her vehicle to help her sister. The Appellant’s husband’s licence is under suspension due to his failure to attend a remedial program resulting from charges of impaired driving and failure to remain on the scene. As a result, the Appellant’s vehicle was impounded for 45 days.

3The Appellant appealed the impoundment on the ground that it will result in exceptional hardship.

4A hearing was held on December 2, 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”).

5For the reasons set out below, I allow the appeal and order the release of the impounded vehicle.

ISSUES

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

EVIDENCE

7The Appellant and her husband both testified at the hearing. Due to her lack of English proficiency, the Appellant had to rely on her husband to act as an interpreter during the hearing. They confirmed that theirs is a family of five, with three young children age 10, 2 and 1, respectively. The Appellant is currently not working. Before the impoundment, she has been attending an English as a Second Language (ESL) class to improve her English skills. She was attending the ESL class every weekday from 9:00 a.m. to 3:00 p.m. The ESL program includes childcare which allows the Appellant to bring her two younger children with her.

8The Appellant’s husband is currently on Employment Insurance (EI) Benefits. His EI will run out in February, 2020; at which point he hopes to return to work.

9The Appellant’s family lives in Windsor, but not in the downtown area. The local public transit bus does not have a route that goes to their neighbourhood. They need their vehicle to get everywhere: buying groceries, going to doctor’s appointments, and going to the ESL class. Both the Appellant’s and her husband’s family live in Windsor but neither have any extra vehicle to lend to the Appellant.

10Since the impoundment, the Appellant has stopped attending her ESL class. The Appellant’s two younger children recently were hit by a flu and the Appellant was unable to take them to see their doctor. Thankfully, they have both recovered. The Appellant has to walk for an hour to buy groceries.

11The Appellant’s husband explained that the loss of use of their vehicle means they have been “locked inside the house”. If they have an emergency, it will be difficult for them to deal with it. The vehicle is essential to them especially in the winter.

12As a family on fixed income, the Appellant and her husband have very limited financial means. Apart from the $1,000 per month rent, and other basic expenses for their family of five, they pay $700 a month for their vehicle, plus another $300 for auto insurance. They worry that the impoundment fee will put them in even more serious financial woes.

13Under cross examination by the Registrar, the Appellant and her husband explained that using taxi and Uber is not an option due to the cost. They will have to pay $30 one way to downtown, whereas with the truck, they were paying about $150 a month on gas. They have approached the insurance company to suspend the auto insurance but the process takes 45 days to complete, which coincides with the period of impoundment.

14The Registrar gave evidence at the hearing and clarified that the licence of the driver who triggered the impoundment is under suspension. In any event, the Appellant is not challenging the legality of the impoundment.

LAW

15Under 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.

16Subsection 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.

17Section 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.

18If 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.

19Pursuant 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.

20Under 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.

21Finally, 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.

22The 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.

23Following 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.

ANALYSIS

24The Appellant does not own any other vehicle, and as the evidence shows, she is not able to access any vehicle that may be owned by her family or her husband’s family. Due to her very limited financial means, the Appellant cannot afford to hire taxi or Uber. The evidence from the Appellant is that the local public transit system is not accessible to the Appellant’s family. As the Appellant testified, she has to walk one hour to the nearest grocery store, and there is no online grocery shopping service in Windsor.

25Based on all of the above, I find there is no alternative to the impounded vehicle available to the Appellant.

26I then have to consider whether the impoundment will result in exceptional hardship, and the answer is yes. The Appellant’s testimony confirmed that since the impoundment, she has stopped going to her ESL class. As an immigrant with limited English proficiency, learning how to speak one of the two official languages of Canada is critical to the Appellant’s successful integration into Canadian society. Not having the English language, as the Appellant’s husband pointed out, has made it difficult for the Appellant to find employment.

27Pursuant to s.10(3), I may consider the loss of education or training. I find that indeed there has been a loss of education in the form of the ESL class that the Appellant had stopped attending. The loss is clearly immediate. I also find such loss significant and lasting, as acquiring proficiency in English is very important for someone like the Appellant to assist her with social integration in the long run.

28The Registrar submitted that the purpose of the impoundment is to ensure people do not drive unless they are legally able to. Both the Appellant and her husband were aware that the latter cannot operate a vehicle due to his suspended licence. The Registrar also submitted that the Appellant’s family has “survived the impoundment”.

29No doubt the impoundment serves a very important policy purpose, but if that is the only thing I could consider, then the legislature would not have put in place a mechanism for appeal which allows the Tribunal to consider such factors as exceptional hardship. If by “surviving” the impoundment, the Registrar meant the Appellant has not suffered any threat to her health, I agree. But the definition of exceptional hardship goes beyond threat to health and covers loss of education which I find the Appellant has established in this case.

ORDER

30For the reasons set out above, pursuant to s. 50.2(5) of the HTA, the Tribunal grants the appeal and orders the Registrar to release the Appellant’s motor vehicle.