S.T. v. Registrar of Motor Vehicles, 2019 CanLII 37541

Licence Appeal Tribunal

Date: 2019-04-12

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:

S.T.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Sandeep Johal, Member

Appearances:

For the Appellant: S.T., Self-represented

For the Respondent: Sonia De Santis, Agent

Court Reporter: Alex McDonald

Interpreter: A.S., appellant’s daughter

Place and date of hearing: Teleconference, April 10, 2019

REASONS FOR DECISION AND ORDER:

Overview

1The appellant is the owner of a 2005 GMC Savana van. On or about March 7, 2019 the appellant’s son-in-law and a co-worker asked to borrow the appellant’s vehicle for two days. Her son-in-law introduced Alex as his co-worker and showed the appellant a driver’s licence of Alex. The appellant was not aware of his last name and was told that Alex would be driving her van to transport a ladder to a job site. However, it was the appellant’s son-in-law who was stopped by police and was charged under the Highway Traffic Act (“HTA”) with driving while under suspension, and the appellant’s vehicle was impounded for 45 days.

2The appellant appealed the impoundment to this Tribunal on the basis that the impoundment will result in exceptional hardship and the appellant asks that the Tribunal order the Registrar to release her vehicle.

3I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and its regulations. In determining whether exceptional hardship will result from an impoundment, regulations under the HTA prohibit me from considering inconvenience.

ISSUES

4Section 50.2 of the HTA provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section also sets out the only permissible grounds upon which an appeal can be based. The appellant’s appeal is based on the following ground:

a. “that the impoundment will result in exceptional hardship.”

RESULT

5I find that the appellant has proved on a balance of probabilities that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and Section 10 of Ontario Regulation 631/98 (the “Regulation”). The Registrar is ordered to release the appellant’s vehicle.

LAW

6Under the HTA, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.

7Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle, 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.

8Section 10 of Ontario Regulation 631/98 sets out several criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. 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 impoundment period.

9if the appellant is able to establish that there is no alternative to the impounded vehicle then under s 10(1), I must consider whether the impoundment will result in:

a. a threat to 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.

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

ANALYSIS

11The appellant appeals the impoundment on the basis of exceptional hardship. In order to demonstrate this she must, in accordance with section 10(1) of the Regulation set out above, demonstrate that there is no alternative to the impounded vehicle and that the impoundment of the vehicle will result in a threat to her health and safety.

Is there an alternative to the impounded vehicle?

12It is my finding that there is no alternative to the impounded vehicle for the following reasons.

13The appellant is a 73-year-old pensioner on a fixed income and her vehicle is what she uses to get around within her community. The appellant relies on the vehicle to travel to the grocery store and to attend her medical appointments. As a result of the impoundment she now must walk to the grocery store which the appellant testified is very far and the appellant further states that she has high blood pressure and this makes it very difficult to walk in cold weather.

14The appellant testified that she is unable to use any other vehicle including her daughter’s vehicle. One of her daughter’s lives in the upper part of her home however the daughter’s vehicle is not available to the appellant as her daughter requires it for work and she testified it is a vehicle that she is not able to use. The appellant’s other daughter lives in Toronto and is only able to visit her on weekends and has not been able to help during the impoundment period in terms of transportation or in any other way.

15The appellant further testified that there is no local public transportation other than a bus that takes her to the local GO station. She is unaware of any public transportation that can take her to the local grocery stores.

16During cross-examination, the respondent put it to the appellant that there is public bus transportation that can take the appellant to the local grocery stores in 10-26 minutes according to a website search performed by the respondent. The appellant testified that she is not aware of any such local public transportation that is available that she can use.

17I accept the appellant’s testimony that there is no local public transportation available, and I do not give any weight to the submission made by the respondent that there is public transportation that is available as no website search or any other evidence was filed or led by the respondent to corroborate her submissions.

18As a result of the above, I find that the appellant has no alternative to the impounded vehicle. I now turn to discuss whether the impoundment will result in a threat to her health and safety.

Will the impoundment result in a threat to the health and safety of any person ordinarily transported by the motor vehicle?

19It is my finding that the impoundment will result in a threat to the appellant’s health and safety as she was the person that was ordinarily transported by the motor vehicle and for the following reasons.

20The appellant testified that she has high blood pressure and needs her vehicle in order to pick up groceries and to travel to appointments. Without her vehicle she has been forced to walk a long distance from her home to the grocery store and back again carrying grocery bags in the cold. I find the appellant to be credible and I accept her evidence.

21Although the appellant testified that she has not missed any medical appointments as a result of the impoundment in my opinion, a 73-year-old women who has high blood pressure and who is forced to walk in cold weather at long distances to shop for groceries and carry them back is a threat to her health and safety. The threat of a medical episode presenting itself upon the appellant in this situation is sufficient to satisfy me that the impoundment will result in a threat to her health and safety.

22In my opinion, the appellant has satisfied me that there is no alternative to her impounded vehicle and the impoundment will result in a threat to her health and safety as she is the person ordinarily transported by the motor vehicle.

23Having found that there is no alternative to the impounded vehicle and the fact that the impoundment will result in a threat to the health and safety of the appellant who would ordinarily be transported by the vehicle, I conclude that the impoundment will result in exceptional hardship as set out under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

24For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s vehicle.