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:
D.R.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Avvy Go, Member
Appearances:
For the Appellant: D.R., Appellant
For the Respondent: Stella Velocci, Agent
Heard by teleconference on: April 16, 2019
REASONS FOR DECISION AND ORDER
Overview
1A hearing was held on April 16, 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 Appellant’s vehicle was impounded on March 10, 2019. The Appellant’s son, R.J. who lives with the Appellant, drove her vehicle while his licence was under suspension.
3The Appellant appealed the impoundment on the ground that it has resulted in exceptional hardship.
4For the reasons set out below, I confirm the impoundment.
ISSUES
5The issue under the appeal is whether the impoundment resulted in exceptional hardship?
EVIDENCE
6The Appellant submitted that she was not aware that her son’s licence had been suspended prior to the impoundment. The Appellant testified that after her vehicle was impounded, she received a letter from the Ministry of Transportation stating that R.J.’s licence was suspended. That was the first time the Appellant realized that her son’s licence was under suspension. The Appellant testified that her son told her the suspension was due to an unpaid speeding ticket.
7The Appellant testified she started letting her son use her vehicle after his own vehicle broke down. The Appellant’s son also has a five-year-old daughter. Her son walks his daughter to school, which is nearby. After the impoundment, if the Appellant’s son needs a ride for appointments, including his daughter’s medical appointments, he asks his friends to help.
8The Appellant gave detailed testimony about the effect of the impoundment on her ability to travel to work, attend medical appointments, participate in community activities and care for her mother.
9With respect to her work, the Appellant, who lives in Kitchener, stated that she needs her vehicle to go to work because there is no public transit that goes to her workplace. Since the impoundment, the Appellant has been relying on various people to drive her to work. As she starts work at 6:00 a.m., the Appellant stated that she has had to inconvenience quite a few people to get her to work. Sometimes when she finishes work, she has to wait for someone to pick her up. So far, the Appellant has been able to attend to work, but she did miss a couple of days of work since the impoundment.
10The lack of use of a vehicle has also meant that the Appellant cannot visit her mother, who lives in Toronto. Prior to the impoundment, the Appellant had arranged for someone to look after her mother during the week (while the Appellant is working) and the Appellant would go to see her mother on weekends. Without a vehicle, the Appellant could no longer visit her mother on a regular basis and has to ask someone who lives in her mother’s building to keep an eye out for her.
11The Appellant has not told her mother the reason why she has not been able to visit her, for fear of causing her worries. Because the Appellant cannot visit her, her mother has not been able to take baths as often. But she does have people who go in to check on her regularly. Her mother has also been able to continue with her medical appointments, but the Appellant has not been able to accompany her to these appointments.
12The Appellant has also not been able to continue her volunteer work at the nursing home due to the lack of a vehicle and it is difficult for her to get there without one. However, the Appellant has continued to attend church, albeit on a less frequent basis.
13In addition, the Appellant has to rely on different people to do grocery shopping. As the Appellant is diabetic, she would much prefer getting her own groceries to make sure she is buying what she needs. The Appellant also has congestive heart failure and has regular appointments with her family physician. She testified that she was unable to find a ride with others to get to medical appointments on a couple of occasions and has had to reschedule these appointments when her ride became available.
14The impoundment has caused the Appellant much anxiety. Fortunately, notwithstanding the additional stress, there has been no change in her medical condition or her medication since the impoundment.
15The Registrar gave evidence at the hearing and clarified that R.J.’s licence has been suspended since August 16, 2018 because of a criminal code infraction and will remain under suspension until August 16, 2019.
LAW
16Under 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.
17Subsection 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.
18Section 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.
19If 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.
20Pursuant 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.
21The 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.
22Following 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
23There is no question that the impoundment has affected the Appellant in many ways, financially and otherwise. The Appellant testified she had missed a couple of days of work. The Appellant has to rely on others to get to her work, to do grocery shopping, and to attend medical appointments. She also has to ask others to help look after her mother.
24The Appellant talks about her anxiety since the impoundment. Although the Appellant did not submit any medical evidence to support her claim it was evident throughout the hearing the tremendous stress that the Appellant has been experiencing.
25I am very cognizant of the impact that the impoundment has on the Appellant. However, the evidence confirms that the Appellant did have an alternative to the impounded vehicle, in the sense that she has been able to rely on rides from others for various purposes. For instance, the Appellant had been able to reschedule her medical appointment when rides became available. While I appreciate the Appellant does not want to inconvenience anyone, the fact that such options have been made available to her means that she has not demonstrated exceptional hardship as the term is defined under the Act.
26But even if I am wrong in finding that there is an alternative to the impounded vehicle, I find that the other conditions under s.10 of the Regulation have not been met. While the Appellant is obviously very stressed by the impoundment, there has been luckily no threat to her health or safety, or to the health and safety of any person ordinarily transported by the vehicle. The Appellant confirmed that her mother has been able to attend to all her medical appointments and the Appellant has been able to find help to look after her mother. There is also no threat to the public health and safety or to the environment of a community involved.
27I also find that while the Appellant had missed a couple of days of work, she had not sustained loss that is significant and lasting. The Appellant also has not provided any evidence to show any loss that will impact on any person ordinarily transported by her vehicle.
28In view of the above, I find that the Appellant has not established that she will suffer exceptional hardship as the term is defined under the Act.
ORDER
29For 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
_________________________
Released: April 26, 2019 Avvy Go, Member