Date: 2019-05-31

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:

K.L.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: K.L., Self-represented

For the Respondent: Nora Challis and Sonia De Santis, Agents

Heard by Teleconference: May 14, 2019

REASONS FOR DECISION AND ORDER

Overview

1A teleconference hearing was held on May 14, 2019 to consider the appellant’s appeal of the impoundment of her 2005 Honda (the “vehicle”) on April 1, 2019 for 45 days under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 (the “HTA”).

2The appellant submits that she was driving the vehicle at the time of impoundment and her drivers licence was not under suspension. Further the appellant argues that the impoundment will result in exceptional hardship because she needs the vehicle to care for her children and the impoundment fees will result in financial hardship.

ISSUES

3The issues under appeal are as follows:

a. whether the licence of the driver of the vehicle was under suspension at the time of the impoundment, and

b. whether the impoundment will result in exceptional hardship.

CONCLUSION

4I find that the registrar has proven that the licence of the driver of the vehicle was under suspension at the time of impoundment and that the appellant’s evidence fails to support a finding that the impoundment will result in exceptional hardship.

LAW AND ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of 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 (b), that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension and ground (d), that the impoundment will result in exceptional hardship.

a. Was the licence of the driver of the vehicle under suspension at the time of the impoundment?

7I find that the driver of the vehicle on April 1, 2019 at the time of impoundment was M.A. and not K.L. as K.L. alleged. M.A.’s driver’s licence was under suspension at the time the vehicle was impounded. Although the appellant K.L. testified that she herself was driving the vehicle at the time of the impoundment, I find that her evidence is not reliable in view of Sergeant M.’s evidence.

8On April 1, 2019 the appellant said that she drove the vehicle to the school in the morning so the children could attend school and parked the vehicle in the parking lot. She said M.A. was a passenger in the vehicle. The appellant testified that she then left M.A. and her three children in the vehicle and went to the field behind the school because she and M.A. had been arguing.

9Appellant testified that she called a friend to pick her up. After her friend picked her up the appellant asked her friend to drive her back to the vehicle because M.A. had called to tell her the police were with her vehicle. Neither M.A. nor the appellant’s friend who she said picked her up testified at the hearing and there was no other corroboration of her testimony.

10Sergeant M., a police officer for 24 years, testified with the aid of his notes. He testified that at approximately 10:00 a.m. on April 1, 2019 he clocked the vehicle travelling 66 km per hour in a 40 km school safety zone. He looked at the driver and recognized him as M.A. from other dealings. The vehicle pulled into the school and M.A. took the children into the school. Sergeant M. told M.A. he would speak to him when he came out of the school. Constable H. arrived at the scene and told him M.A. was walking away. Sergeant M. found M.A., arrested him and took him back to the scene.

11When the appellant arrived at the scene she said she was driving and Sergeant M. told her that this was impossible because he observed M.A. in the driver’s seat and no other adult was in the vehicle. Sergeant M.’s notes corroborate his testimony and record: “…vehicle was passing by with A. in the drivers seat as he is known to me from previous dealings….A. was the only adult in the car when he passed me…..Told him not supposed to be driving. He replied no, Katie and I just got into a fight, I had to drop the kids off…” Sergeant M. confirmed that M.A.’s driving licence was under suspension on April 1, 2019. The driving record of M.A. filed by the Registrar confirms that M.A.’s driving licence was under suspension on April 1, 2019.

12I find the testimony of Sergeant M. to be more credible than that of the appellant. Sergeant M. is an experienced police officer, knows M.A., observed M.A. driving the vehicle on April 1, 2019 and recorded his observation in his notes. The notes of Constable H. also corroborate what Sergeant M. said.

b. Will the impoundment result in exceptional hardship?

13I find that the impoundment will not result in exceptional hardship because the appellant has alternative modes of transportation available to her impounded vehicle.

14Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that must be considered by the Tribunal 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.

15If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), the Tribunal must 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.

16I 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. If find that the appellant has not established that there is no alternative to the impounded vehicle.

17Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

18The appellant testified that as a single mom she needs the vehicle to care for her three children and the impoundment fees will be a financial hardship. She said that she purchased the vehicle from M.A. in October, 2018 but doesn’t remember how much she paid him. The appellant testified that she is not employed. Her three children all attend the same school and take a bus to their school but have to walk to get the bus and sometimes it is raining. The school is also within walking distance. On April 9, 2019, after the impoundment, M.A.’s father bought a car and put it in her name and allowed her to use it until about a week before the hearing but then stopped letting her use her second vehicle. Since the impoundment her mother has occasionally taken her grocery shopping and there is a store she can walk to for small items. She and the children had been able to attend medical appointments since the impoundment because the appellant has access to community care transportation. Friends have also given the appellant rides.

19The appellant stated in her Notice of Appeal “…disabled family friend depends on me to transport her to and from her appointment, grocery shop” but I note she did not speak about this in her testimony or in her submissions at the hearing.

20Although the appellant spoke of the inconvenience of her children having to walk in the rain during the impoundment period, “inconvenience” is not a factor which the Tribunal can take into consideration.

21The appellant has alternatives to the impounded vehicle. She has sometimes had the use of the second vehicle in her name and her mother and community care have provided transportation during the impoundment period. The appellant can walk to her children’s school and to a store. The appellant does not require the impounded vehicle for employment.

22I find that the appellant has alternatives to the impounded vehicle available to her and because there are alternatives to the impounded vehicle, I cannot consider the financial loss to the appellant. Because I have found there are alternatives to the impounded vehicle, the appellant has failed to make out 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. The vehicle will remain at the impound facility for the remainder of the impoundment period.