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:
T.M.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: T.M., Self-represented
For the Respondent: Nora Challis and Stella Velocci, Agents
Heard by Teleconference: April 15, 2019
OVERVIEW
1A teleconference hearing was held on April 15, 2019 to consider the appellant’s appeal of the impoundment of her 2012 BMW (the “vehicle”) on February 13, 2019 for 45 days.
2The appellant submits that the impoundment has resulted in exceptional hardship to her because she needs the vehicle to get to her employment, to transport her children to their father’s home when she is working nights and to visit him every other weekend and because the loss of the vehicle is causing financial hardship.
ISSUES
3The issue to be determined is whether the impoundment has resulted in exceptional hardship.
CONCLUSION
4I find that the appellant’s evidence fails to support a finding that the impoundment resulted in exceptional hardship.
LAW AND ANALYSIS
5The 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 and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.
Will the impoundment result in exceptional hardship?
7I find that the impoundment will not result in exceptional hardship because the appellant has alternatives to the impounded vehicle available.
8Section 10 of O. Reg. 631/98 (the “Regulation”) 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, 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 impound period.
9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must then 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.
10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The appellant is a single mother who needs her vehicle to get to her place of work which is in another municipality, to transport her children to their father’s home in another municipality when she is working nights and to visit him every other weekend in accordance with co-parenting arrangements. After the vehicle was impounded on February 13, 2019, the appellant testified that she reported to her employer that she was sick for eight days and was paid for three of the eight days. On February 22, 2019 the appellant moved to another municipality further away so that she now lives some 53 kilometers from her place of employment. Following the move she applied for her employer’s short term leave benefits because her doctor placed her on sick leave. She was paid for two weeks but denied further benefits, which she is currently appealing through her union. Appellant is on a leave of absence from her employment, currently receiving employment insurance benefits, and is seeking employment in the municipality where she now lives.
13Appellant’s three children walk to school from the appellant’s home. Appellant testified that she cannot work without her vehicle because she works both day and night shifts. When she works night shift she has to take her children to stay with their father overnight and pick them up in the morning and take them to school. Without her vehicle she cannot pick the children up in time to get them to school on time. In cross-examination she admitted that she could still have worked day shifts without her vehicle but that she missed a total of nine night shifts of work between the time the vehicle was impounded and when she could have picked up the vehicle. The other night shifts she has been paid for by her employer.
14Appellant testified that there is no public transit that she can use to get to her place of work and that an UBER ride to her employment would cost $65.00 each way. In cross-examination she admitted that there is GO transit from where she now lives to her place of employment but that the times would not work when she is on the night shift because she cannot pick up her children and get them to school on time.
15The appellant testified that without her vehicle she cannot work and she cannot take her children to stay with their father when she is working night shift and to visit him every other weekend in accordance with co-parenting arrangements. She testified that she has been able to get to her family physician but has missed an appointment at a hospital which can be rescheduled.
16The appellant did not obtain release of her vehicle when the impoundment period expired some two weeks before the hearing because she said she could not afford the impound fees.
17The burden of proof in this appeal is on the appellant and I find that she has not satisfied that burden. She has not demonstrated with reliable and credible evidence that there were no alternatives to the impounded vehicle available to her during the impoundment period. I find the appellant’s evidence that she had no alternatives to the impounded vehicle unreliable. She has not demonstrated that she made sufficient efforts to try to get to work during the impoundment period by any of the alternate means available to her. Immediately after the impoundment she took sick leave and was paid for some 17 days. The termination of her sick leave is being appealed through her union and the outcome is not yet known. After the sick leave benefits were terminated, appellant applied for and obtained employment insurance and is seeking work where she now lives.
18The appellant still has an option to return to her employment because she is on a leave of absence. The appellant has not used the GO transit public transportation system to get to her work. In her Notice of Appeal the appellant stated “There are no GO trains, or buses”. At the hearing she admitted there was GO transit available between where she lives and where she works but that the times would not work out on the night shift, and for nine night shifts she would not be able to get to and from work and get her children to school on time and so she did not work those shifts. This is not a tenable argument because the appellant did not inquire into every reasonable option to make GO transit work such as supplementing the GO transit when necessary with cabs or UBER so that the children could get to school on time and she could get to work on time. Appellant testified that renting a vehicle to get to work was unaffordable but gave no estimate of cost to rent a vehicle for the nine times she believes she could not take public transit. The appellant did not obtain release of her vehicle when the impoundment period expired some two weeks before the hearing.
19I find that there were alternatives available to the impounded vehicle. Public transit, vehicle rental and UBER were all available during the impoundment period, albeit at a cost. Instead the appellant made a decision not to work during the impoundment period, even before her move on February 22, 2019 to the municipality further away from her place of employment. I also note that because the appellant’s employer has allowed her to take a leave of absence during the impoundment period and beyond, her employment is still available to her so she has not suffered a loss of employment as a result of the impoundment.
20The appellant has not needed to transport her children to stay with their father when working the night shift because she has not worked any night shifts during the impoundment period. The appellant had alternative means of transportation available to her to take her children to see their father including public transit, vehicle rental and UBER.
21I find that the appellant had alternatives to the impounded vehicle available to her. As I have found that the appellant had alternatives to the impounded vehicle available to her, I cannot consider the financial loss to the appellant.
22Therefore I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER
23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. As the impoundment period has expired, the appellant may retrieve her vehicle if she has not already done so.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: May 2, 2019