Date: 2019-07-19

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:

Jaymie Barnes

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Patricia Conway, Member

Appearances:

For the Appellant: Ray Daniels, legal representative

For the Respondent: Sanjay Kapur, Agent

Court Reporter: Christopher Delic

HEARD by Teleconference Hearing on: July 15, 2019

REASONS FOR DECISION AND ORDER:

Overview

1The appellant is part owner of the impounded vehicle together with Clifford Martin, a friend of 30 years.

2The appellant was driving the vehicle on June 9, 2019 when she was stopped by the Ontario Provincial Police. The appellant did not have a licence with her. The officer checked her licence status and discovered that it was suspended in 2004 and was never reinstated. The vehicle was impounded pursuant to section 55(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (Act) and the appellant was charged.

3The appellant appealed the impoundment to this Tribunal under s. 50.2 of the Act on the bases that her licence was not suspended at the time of the impoundment, and that impoundment will result in exceptional hardship. The appellant asks the Tribunal to order the Registrar to release the vehicle.

4Based on the evidence I have heard, I conclude that Ms. Barnes’ licence was suspended on June 9, 2019. I find that Ms. Barnes has proved on the balance of probabilities that there is no viable alternative to the impounded vehicle for her and that the continued impoundment of the vehicle threatens her health.

5I order the Registrar to release the vehicle

THE LAW

6Section 55.1(1) of the Act sets out the authority of the police to impound a vehicle when it is being driven by a person whose driver's licence is under suspension.

7Subsection 50.2(3) of the Act 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 under paragraphs (b) and (d) of subsection 50.2(3), which state:

b. that the driver’s licence of the driver of the motor vehicle at the time it was detained to be impounded was not then under suspension;

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 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 establishes that there is no alternative to the impounded vehicle, I go on to look at the question of exceptional hardship. The Regulation under the Act, s. 10(1), tells me to consider whether the absence of the vehicle threatens the health or safety of any person normally transported in the vehicle. Subsections 10(2), 10 (3) and 10(4), together state that financial or economic loss, loss of employment or loss of training or education opportunities cannot be considered where the driver was the person under suspension, However, where a person’s health or safety is at issue, the fact that s/he was the driver does not exclude her.

EVIDENCE AND ANALYSIS

Was the appellant’s licence suspended when the vehicle was impounded on June 9, 2019?

10Before evidence commenced, the Registrar requested an order excluding witnesses to ensure that the evidence of Mr. Martin would not in any way be affected by the testimony of Ms. Barnes. I granted the request and Mr. Martin removed himself to another room while the appellant gave her evidence.

11The Registrar introduced into evidence the appellant’s driving history, certified as correct. It indicates that the appellant was convicted in 2004 of driving with a blood alcohol content of over 80 mg. and her licence was suspended. The suspension was a one-year suspension. The appellant decided not to install the device, and so understood that she would be suspended for two years. The appellant stated she believed that after two years her licence was automatically reinstated. The driving history indicates that it was not reinstated. She failed to complete a remedial course prescribed, and therefore her licence remained suspended under section 57 of the Act. The appellant told the Tribunal that she had no knowledge of any requirement for a remedial course and received no notice from the Ministry of Transportation that her licence was still under suspension.

12Mr. Kapur on behalf of the Registrar was unable to say whether the Ministry sends out notices to suspended drivers regarding the requirement to take remedial courses or regarding continued suspensions for failure to complete such courses. I find the evidence of the appellant that she did not know about the remedial course requirement and did not receive notice regarding it from the Ministry, is believable. However, I do think that at some point long before 2019 she must have become aware that her licence was not current, for she never renewed it.

13Mr. Martin gave evidence regarding the 2004 incident. He stated that he was aware that Ms. Barnes’ licence was suspended “a long time ago”, although he did not remember exactly when. He stated that he went with her to pay the fine for her 2004 conviction and suspension, and his recollection is that her physical licence was returned to her at this point. He stated he did not remember seeing her licence after that but believed he might have seen it when they first purchased a vehicle together some five years ago. He stated that both he and Ms. Barnes had no idea that her licence was still suspended. He also stated that this was something they never talked about.

14The question, however, is not what Ms. Barnes believed, nor what Mr. Martin thought. There is really no question that Ms. Barnes had a suspended licence when she was stopped on June 9, 2019. Her appeal on this ground must therefore fail, and I find that it does.

Will the loss of the impounded vehicle cause exceptional hardship?

a. Has every reasonable option been considered that could eliminate or adequately mitigate any threat or loss to the appellant?

15The appellant testified that she lives in Wyoming, Ontario which is a very small community 35 minutes by car distant from Sarnia, and 15 minutes by car distant from Petrolia. There are no buses or taxis in Wyoming. The impounded vehicle is her only means of transport. Mr. Martin keeps their vehicle in Sarnia, and when she needs it to go to medical appointments and grocery shopping, Mr. Martin picks her up in Wyoming and either drives her to her appointments and errands or has her return him to Sarnia, leaving her to do her errands. She then picks him up and they drive her home to Wyoming, and he returns in the vehicle to Sarnia.

16This pattern has continued for more than five years. The appellant testified that both she and Mr. Martin are disabled to varying degrees and on fixed incomes. They are long-time friends. They agreed to purchase a vehicle together as neither could afford one and both required frequent transport for medical reasons and to carry out errands.

17Ms. Barnes testified that she needs to get to Sarnia for medical appointments. She has several ailments and provided a letter from her physician to attest to this. She described them in some detail, and I found her very clear explanation of how these impact her and what she must do to take care of them credible. These include a respiratory disorder, COPD, for which she takes medication and uses inhalers. She generally goes to her physician once a month for this condition. She has enough medication to last until the end of the month. She must see her physician to discuss the results of recent bloodwork before he can renew or revise her prescription. She also has an internal disorder that she tries to manage with minimum medication and diet. The diet requires fresh vegetables and fruit and that necessitates shopping. She also had a severe break to her ankle in November 2018. The ankle did not heal well, and she has not yet regained its full use and mobility. Up to the time of the impoundment, she was going to physiotherapy appointments twice weekly. She has had to stop altogether since June 9.

18The appellant admits that she can call a taxi to get to Sarnia. She notes however that cabs are not always willing to drive the 25 minutes it takes to go to Wyoming to pick her up. The cost of a return trip is $80. Since the impoundment she has gone to Sarnia on three occasions, the last for the hearing today. I deduce from her evidence that she had to go to Sarnia for the hearing for two reasons: the first is that Mr. Martin was giving evidence. He has rheumatoid arthritis and cannot walk well. He has no means of transportation. The second is that her legal representative is in Sarnia. I conclude that overall travelling to Sarnia was the least expensive alternative for her. Since taxis may not be willing to go to Wyoming when she calls, she has had to ask neighbours to help her. The neighbours require to be paid, and she has IOU’s out to them for $240, that is, $80 a trip. She is on a fixed income, receiving a disability allowance of $1400 a month. She stated at the hearing that her IOU’s must come out of her grocery allowance. She has stopped shopping for groceries and is surviving on the staples she has at home. She uses powdered milk and lacks fresh fruit and fresh vegetables.

19Ms. Barnes gave this evidence in an unvarnished, almost angry manner. I found this understandable and her testimony about the effects of the impoundment on her situation was credible. It seemed to me that she feels at her wits’ end and is also angry with herself for failing to deal with her licence suspension for so long.

20In my view, the appellant has established that there is no viable alternative to the impounded vehicle. My reading of paragraph 10(4) under Regulation is that an alternative to the impounded vehicle is something that can alleviate or adequately mitigate any loss or harm. Paying her neighbours to take her to Sarnia as frequently as she needs to go is not an option for the appellant, because to do so she must go without the fresh fruit and vegetables she needs to control her internal condition. Doing without a vehicle is not a viable alternative because she misses physiotherapy and thus risks that her ankle will suffer a permanent limitation of use. Not going to Sarnia also means that she must put off seeing her doctor and having her bloodwork examined and any necessary change in her COPD medication ordered.

21In argument, the Registrar suggested that perhaps Ms. Barnes should have considered moving closer to Sarnia, as this would make getting to her medical appointments and physiotherapy less expensive. Regrettably, he did not put that possibility to her while he was questioning her. In my assessment, it is not fair or proper of the Registrar to suggest an alternative when it has not been put first to the appellant. Ms. Barnes did tell us that she moved out of Sarnia last autumn, and that she was able to do it only because her mother died and left her a small legacy which was enough to allow her to move out of the city. I derive from this that a move out of Sarnia was important to her. It is a matter of general knowledge that the great industries of Sarnia have a strong and negative impact on the quality of the air. This may be improving as efforts are made to improve the environment. However, as a person with COPD Ms. Barnes has a compromised respiratory system that unfortunately cannot be cured, only slowed. The notion that she should consider moving closer to Sarnia would not appear to be a reasonable alternative from her health’s perspective.

b. Does the continued impoundment of the vehicle threaten the appellant’s health or safety?

22Because there are no reasonable alternatives to the vehicle, and because the vehicle is necessary to allow Ms. Barnes to attend to her health needs, I find that not having the vehicle does threaten her health. She needs to be able to consult with her physician, to pick up her medications, to attend physiotherapy and to buy fresh food to maintain her health. She needs her vehicle to accomplish these tasks. Without the vehicle, her health is threatened.

23This determination that the vehicle should be released would ultimately be of no practical assistance to Ms. Barnes given that her licence remains suspended. However, she is most fortunate to have Mr. Martin as the co-owner of the vehicle. Mr. Martin told the hearing that he is prepared to keep custody of the vehicle. He will drive Ms. Barnes as she requires and will himself be able to use it.

DECISION

For the reasons given, I order the Registrar to release the vehicle.