Date: 2019-05-06

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:

R.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jennifer Friedland, Member

Appearances:

For the Appellant: R.S., Appellant

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference on: April 18, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, R.S., appeals the impoundment of her 2004 Jaguar CX3 (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). She seeks an order releasing the vehicle from impoundment.

2The hearing proceeded by way of a teleconference on April 18, 2019. The parties consented to my hearing the matter notwithstanding that I was the case conference adjudicator. This consent was provided pursuant to Rule 14.3 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017; amended February 7, 2019) (the “Rules”).

3A preliminary issue was heard pertaining to the issue of standing. The Registrar submitted that the applicant lacked standing to bring the appeal as she was not the owner of the vehicle at the time of the impoundment.

4For the reasons stated below I find that R.S. has standing to have the appeal heard.

5I further find that that she meets the test for exceptional hardship and order the Registrar to release the vehicle.

BACKGROUND

6R.S. suffers from multiple medical conditions and historically relied on her car for transportation. In November 2018, her previous car broke down. She was then offered a good deal on another car, through a friend.

7On December 10, 2018, R.S. purchased the now impounded vehicle for $350.00. She received a bill of sale and the vehicle ownership documents at that time, but did not register her ownership with the Ministry of Transportation (MTO) until April 3, 2019.

8In the meantime, the vehicle sat in her driveway. She put her own old plates on it, stating that in her neighbourhood all vehicles needed to be plated to sit in the driveway. She claims she did not drive it, as it was not yet insured and needed repairs before it could be certified for safety.

9On February 17, 2019, R.S. had a mechanic come to her home to fix the brakes on the vehicle so that it could be certified. It turns out, the mechanic’s driver’s licence had been suspended since 1989. He was pulled over that day by the police while driving R.S.’ vehicle a few blocks from her residence. The vehicle was then detained and impounded pursuant to s. 55.1 of the Act.

10R.S. was informed by a police officer of the impoundment, however the Notice of Impoundment was sent to the previous owner, who was still the registered owner, according to MTO records.

11On March 13, 2019, the appellant filed an appeal. She faced some delay due to not having the original notice of impoundment and because she could not afford the filing fee. On April 12, 2019, following a case conference, the Tribunal granted R.S. an extension of time for filing her appeal.

12R.S. did not check any specific grounds of appeal on her Notice of Appeal, but the hearing proceeded on the basis that her potential grounds of appeal were a) that the vehicle was stolen at the time it was detained in order to be impounded; b) that she exercised due diligence in ascertaining whether the driver had a valid licence; and c) on the issue of exceptional hardship.

13The vehicle was still at the impound facility as of the date of the hearing of this appeal. It was due to be released on April 3, 2019 but R.S. could not afford to pay the impoundment fees.

14The Registrar acknowledged that if standing is found and if R.S. is successful on any of her grounds of appeal, then the process would be for the Registrar to pay the towing and impound fees accumulated during the 45-day period of the impoundment. These costs would be paid either to the impound facility directly or as a reimbursement to R.S. if she has paid for the release of the vehicle by the time of this decision.

PRELIMINARY ISSUE – Whether the Appellant has standing on this appeal

15The Registrar submits that R.S. lacks standing on this appeal because she was not the registered owner of the vehicle on the date it was impounded. The Registrar referred me to s. 50.2(3) of the Act which sets out the grounds on which a person may appeal. Because all but one of these grounds refer to a state of affairs “at the time the vehicle was detained in order to be impounded”, the Registrar submits that “the temporal context of the statute (and ownership) is the time of the impoundment, and contextually speaking, the appeal grounds apply only to the registered owner as of the date and time of the impoundment.”

16I disagree. The grounds for appeal in s. 50.2(3) do not address the issue of standing. Standing is addressed in s 50.2(1) which sets out who may appeal an impoundment. That provision states:

50.2 (1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.

17“Owner” is defined in section 50.2(11) of the Act as follows:

Owner means each person whose name appears on the certificate of registration for the vehicle but in subsection (4) “owner” means the person whose name appears on the plate portion of a permit in cases where the certificate of registration consists of a vehicle portion and a plate portion and different persons are named on each portion.

18There is no dispute that R.S. became the owner, as defined under the Act, on April 3, 2019, when her ownership was registered with MTO. There is likewise no dispute that she is the registered owner now, at the time of this appeal, and that she has paid the fee to file an appeal.

19When asked for submissions as to why R.S. would not have a right of appeal as the registered owner today of a vehicle that is impounded pursuant to s. 55.1, the Registrar maintained that even if there is no requirement to be the registered owner of the vehicle “at the time the vehicle was detained in order to be impounded”, R.S. should still be refused standing on the basis that the vehicle was not still impounded on April 3, 2019, the day her ownership was registered. The Registrar points to the Notice of Impoundment which states:

Pursuant to Section 55.1 of the Highway Traffic Act, the above noted vehicle has been impounded for a period of 45 days effective 2019/02/17 and is to be released to the owner/delegate effective 2019/04/03 (emphasis in original).

20The Registrar submits that because the vehicle was to be released on April 3, 2019, the impoundment technically ended the day before, on April 2, 2019. Therefore, in the Registrar’s submission, R.S. was never “the owner of a motor vehicle that is impounded” as set out in s. 50.2(1) (my emphasis).

21I disagree. I find that on April 3, 2019, the vehicle was still within the period of the 45-day impoundment, notwithstanding that it could also have been released on that day. As a result, it is unnecessary for me to decide whether a vehicle “is impounded” within the meaning of s. 50.2(1) after the 45-day impoundment period has ended.

22My basis for concluding that the vehicle was still within the period of the 45 day impoundment comes from the manner for counting time set out in section 89(3) of the Legislation Act, S.O. 2006, c.21, Sched. F, which states as follows :

Number of days between events

(3) A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days. 2006, c. 21, Sched. F, s. 89 (3).

23The first day of the impoundment was February 17, 2019. Excluding that day, as per s. 89(3) of the Legislation Act, the 45 day impound ends on April 3, 2019.

24One argument that was not raised by the Registrar but that I will nonetheless address is whether R.S. should lose standing by virtue of the fact that when the appeal was commenced she was not the owner as defined in the Act. R.S. became the owner on April 3, 2019. The appeal was commenced during the period of impoundment on March 13, 2019. At that time, R.S. was technically not the right person to have commenced the appeal. I cannot, however, see this as fatal to her standing to continue the appeal once she became the registered owner.

25I find support for this conclusion in the plain wording of s.50.1 (2) which sets out who the parties are to an appeal. It states:

Parties

(2) The owner and the Registrar are the parties to an appeal under this section.

26In my view, for the purposes of s. 50.1(2), the crucial time for R.S. to be the owner is at the time the appeal is heard. No other person other than R.S. would meet the definition of party in order to have standing at the time of the hearing.

Conclusion on the Issue of Standing

27The present case is something of an anomaly. The tribunal has no reported cases where ownership has transferred under the Act midway through the proceedings. The Tribunal has, however, dealt with cases where the car had been sold prior to the impoundment but ownership had not transferred by the time of the appeal. See for example, 9705 v. Registrar of Motor Vehicles, 2015 CanLII 59614 (ONLAT) and 11761 v. Registrar of Motor Vehicles, 2019 CanLII 29121. In both cases, regardless of there being a beneficial owner at the time of the impoundment, it was only the owner as defined under the Act who had standing to appeal. However, unlike the present case, the registered owner did not change between the time of the impoundment and the time of the hearing.

28In R.S.’ case, she commenced this appeal on the understanding that she was the legal owner of the vehicle at that time, having purchased the vehicle and received a bill of sale. The Registrar does not dispute that she was the beneficial owner at that time, and while it is clear that she would not have had standing had she remained beneficial owner at the time the appeal was heard, I am satisfied that by April 3, 2019, R.S. had cured this prospective problem.

29Section 50.2(2) clearly specifies that only R.S. could have had standing as a party at the time the appeal was finally heard.

30I find that, in the unique circumstances of this case, in which R.S. became the owner on the last day of the impoundment period, having already filed her appeal with the Tribunal, and is the owner at the time of the hearing, I find that she has standing to appeal under s. 50.2(1).

31Having concluded that R.S. has standing to continue her appeal, I turn now to its merits:

Issues & Analysis

32The appeal proceeded on the basis that R.S. may have had three grounds of appeal pursuant to s. 50.2 (3) of the Act. Two of these can be quickly dismissed as being without merit.

Issue #1 - Whether the vehicle was stolen at the time it was detained in order to be impounded.

33The vehicle cannot be considered to have been stolen at the time it was detained in order to be impounded. R.S. told the mechanic that the keys were in the car, along with the new brakes he was to install. Although she states that she did not give the mechanic permission to drive, she acknowledges that she did not tell him not to. I agree with the Registrar that it was reasonable to expect that a mechanic replacing the brakes on a car would take the car on the road to test them. When the mechanic did so in this case, it can hardly be said that he had stolen the car at that time.

Issue #2 - Whether the owner of the motor vehicle exercised due diligence in attempting to determine the status of the driver’s licence

34R.S. did not make any inquiries about the status of the mechanic’s licence. She testified that “it’s irrelevant” and “not a thing you think of.” She cannot succeed on this ground of appeal if she made no attempt at all to inquire into the status of his licence.

Issue #3 – Whether the impoundment will result in exceptional hardship

35The test for “exceptional hardship” in the impoundment context is difficult to meet. Section 10 of Regulation 631/98 sets out the requirements that must be met before the Tribunal may order the release of a vehicle on this basis.

36Pursuant to section 10 (1) of the Regulation, the first part of the test for exceptional hardship requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available.”

37Section 10 (4) then sets out what an appellant must show in order to meet this initial prong of the test:

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.

38If I find that R.S. has no alternative to the impounded vehicle, s. 10 then requires me to 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.

39Finally, s. 10 (2) and (3) of the Regulation, state that I cannot consider “inconvenience to any person” in determining whether exceptional hardship will result from an impoundment. These provisions also set out the criteria for considering financial loss, loss of employment, or loss of schooling as a result of an impoundment; however, because these are not relevant to R.S.’ grounds of appeal, they need not be addressed in this decision.

Whether the appellant has an alternative to the impounded vehicle

The appellant’s need to travel to and from medical appointments

40In her initial notice of appeal, R.S. included a note from her doctor indicating that she required her car for medical appointments. Her doctor also confirmed that R.S. suffers from “multiple medical conditions.” During the hearing, these were described as including, serious back problems, kidney problems, arthritis, HIV and Hepatitis C, which R.S. believes was recently cured. In short, as she puts it, “anything you can think of, is wrong with me.” She is on medication. She reports being unable to walk to the mailbox at the end of the walk and she is in continual pain. At one point, she described herself as “just waiting to die.”

41R.S. is supposed to see her HIV doctor once a month, but has not gone in almost three months, she says, due to not having a vehicle. She also regularly sees her GP, who, after viewing the results of an MRI in March, 2018, recommended that she take physiotherapy for her back. Despite this recommendation approximately 13 months ago, R.S. has not started her physiotherapy. While R.S. explained that she needed a car to get to and from physiotherapy, it appears she had made no effort to attend for this therapy even when she previously had the use of a car.

42R.S. described how when she did need to get to an appointment during the course of the impoundment, she used DARTS – which is a specialized transit service in her home town of Hamilton.

43With respect to the reasonable alternatives available to R.S. for transportation to and from medical appointments, I am satisfied that she had such an alternative in the form of the DARTS bus service to get to these appointments. Although she described DARTS as being inconvenient, and she also begrudged the cost, it is clear she could have taken DARTS to attend at her HIV doctor’s appointments as well as any other appointments, including physiotherapy. I find that with respect to getting to and from her medical appointments, DARTS is an alternative pursuant to the Regulation and is an insufficient basis to find exceptional hardship under the Act.

The appellant’s need to travel for necessities

44R.S. is impecunious. She is on ODSP and receives $1411 per month. After her rent is covered, she ends up with $490.45 to live on for the month.

45She relies on the food bank in Hamilton for her groceries.

46R.S. testified that the food bank is by appointment only and that a person can only go one time per month, at which time the next month’s appointment is booked. She described how if a person is unable to get to the food bank within a ½ hour of the appointment, it will be canceled. She described that there is another food bank in the town that was not by appointment but was also only available once a month.

47R.S. described that she endeavoured to rely on a friend for lifts to the food bank but in both February and March, her friend could not help her. She explained that once she had her food bank appointment booked, she would tell her friend about it. However, when the appointment was only a day or so away, her friend told her she could no longer come. By the time her friend cancelled, it was too late for R.S. to book DARTS, though she tried.

48With respect to the viability of using DARTS for the food bank in the first place, as she found out in April when she did finally go to the food bank using DARTS, the transit service would only allow her to bring two bags of food on the bus with her. Meanwhile, she had gathered 18 bags of food. She had to leave all but two of them behind.

49R.S. appeared to me to keep a good record of her appointments and was able to look up the specific days she was supposed to have gone to the food bank.

50When pressed by the Registrar in cross-examination about her efforts to rely on other friends to take her to the food bank, R.S. explained that she did not have many friends, as she was from British Columbia and that she only had one friend who had access to a car.

51When further pressed about how hard she tried to get this one friend to take her to the food bank, R.S. indicated a number of times that she “didn’t want to go there.” Finally, in exasperation, she explained that her friend was in an abusive and controlling relationship. She testified how, “when she gets the car, she can have the car, but when he beats her she doesn’t get the car.” She explained that her friend would help when she could but did not have control over whether she would be allowed to get the car. In R.S.’ words, “because you can’t control when you get up whether he is going to beat you.”

52I accept the evidence of R.S. that during the period of the impoundment, she was unable to get to the food bank due to not having a vehicle. In April – when the car was still in the impound facility because she could not afford to get it released – she managed to get to the food bank with DARTS but found she could only take home a fraction of her groceries. She also testified that she considered taking a taxi but could not afford it.

53I find that R.S. had no reasonable alternative to the impounded vehicle in terms of getting to and from the food bank. I am required to next consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by it.

54I am satisfied that R.S. considered and inquired into every reasonable option to meet this basic need of food and could not manage it. She described how occasionally a friend would drop something off for her, or she would ask her roommate to get something from Giant Tiger down the street, but her staples were from the food bank and she could not avail herself of this option without her car.

55The appointment calendar that she referenced, specifying the dates and times of her appointments, satisfy me that she relied on the food bank for her sustenance and that she did not have a reasonable alternative to obtain this basic need without her vehicle. I find that the impoundment therefore resulted in a threat to her health and safety.

56I am further satisfied that R.S. had limited resources available to her in terms of friends in the community that could help her and she was not in a position, as she explained it, to foist her problems on others.

57Finally, I accept that if the car not been impounded, it would have been ready to be certified and driven by R.S. She testified that her purpose in having the brakes replaced on the day of the impoundment was specifically so that she could begin driving the vehicle. Once certified, it was her intention to register her ownership and begin driving. I accept that this meets the criteria of R.S. being a person “ordinarily transported” by the vehicle.

58I find in this case that R.S. meets the test for exceptional hardship and order the vehicle to be released.

ORDER

59Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the vehicle.