Date: 2019-07-15

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:

Paola Taj-Taj

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Asad Ali Moten

Appearances:

For the Appellant: Self-represented

For the Respondent: Stella Velocci, Agent

Heard via teleconference: June 10, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, Paola Taj-Taj, appeals the impoundment of her 2014 BMW. On May 6, 2019, Ms. Taj-Taj’s boyfriend at the time was driving her car with a suspended Ontario driver’s licence. He was stopped by police and when it was discovered that he did not have a valid Ontario driver’s licence, the car was impounded for 45 days.

2The appeal is made on the basis that the impoundment of Ms. Taj-Taj’s vehicle has caused exceptional hardship. She argued that as a recipient of social assistance who commutes a considerable distance to take her daughter to an exclusive athletic opportunity, she cannot afford to find an alternative vehicle, and the risk to her daughter’s scholarship opportunities are significant.

3The Registrar argues that there is no exceptional hardship for Ms. Taj-Taj, given that she lost her job prior to the impoundment and has access to public transit or friends within Barrie for her daily needs.

4After considering all of the evidence provided, and based on the reasons below, the Tribunal directs the Registrar to release the vehicle and pay on behalf of the owner the amount incurred by the owner, as a result of the impoundment, for removing and impounding the vehicle not including any amount for economic losses.

ISSUES

5The issue to be determined is whether the impoundment of Ms. Taj-Taj’s vehicle has caused exceptional hardship.

eVIDENCE, LAW, and ANALYSIS

6The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Pursuant to s.55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.

7An owner whose vehicle has been impounded can appeal to the Tribunal to have the Registrar release the vehicle based on any of the grounds listed in s. 50.2 of the HTA. Appellants have the onus to establish that any of the grounds in s. 50.2 have been met. In this instance, W.B. appealed to the Tribunal based on s. 50.2(3)(d), which states:

s. 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.

8Section 10 of O. Reg. 631/98 (the Regulation) provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation, the Tribunal may only consider financial or economic loss, loss of employment or employment opportunity, or loss of a training opportunity if the owner of the vehicle can demonstrate that:

• There is no alternative to the impounded motor vehicle available;

• The loss will be immediate, significant and lasting;

• The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and,

• The impact of the loss will be on someone other than the suspended driver whose driving resulted in the impoundment, and the loss is not suffered by the suspended driver.

9Inconvenience to any person is not exceptional hardship.

10Ms. Taj-Taj testified that her boyfriend at the time possessed an Alberta driver’s licence, and that she and he assumed this licence to be valid in Ontario. As it turns out, Mr. Turrell Owen’s Ontario driver’s licence was in fact suspended indefinitely due to driving with a blood alcohol content of more than 80 mg/100mL. Ms. Taj-Taj knew that Mr. Owen had previous driving issues in Ontario, but believed, based on his word, that because he had been licensed in Alberta, this meant he could drive in Ontario.

11On May 6, 2019 Ms. Taj-Taj lent her car to Mr. Owen to pick up a friend in Orillia. At some point in the early morning, Mr. Owen was pulled over by police and the car was suspended.

12Ms. Taj-Taj testified that she had lost her job prior to the impoundment, and that she was currently in receipt of social assistance. At the time of the impoundment, Ms. Taj-Taj used the car for the following daily or regular purposes:

• Driving one of her daughters to school and rugby practice;

• Taking her mother to doctors’ appointment and social assistance appointments;

• Attending meetings to look for employment as required by social assistance; and,

• Running her daily errands to meet the needs of her and her three children.

13The first question that the Tribunal must consider is whether Ms. Taj-Taj has an alternative to the impounded motor vehicle available to her. The Registrar argues that she has alternatives available because she was unemployed at the time of impoundment and thus not prevented from going to work; her appointments have been sporadic and though inconvenient Ms. Taj-Taj has been able to take public transit within Barrie or seek help from friends; and her mother’s appointments have been rescheduled where possible or a nurse has assisted with transporting her mother.

14The Tribunal agrees with the Registrar insofar as Ms. Taj-Taj has been able to make do in each of those situations with other means, demonstrating that she has, for those purposes, alternatives available to her other than the impounded car. However, the Tribunal disagrees that finding an alternative for one or some purposes means that Ms. Taj-Taj has an alternative for every daily use of her car.

15The most significant concern of Ms. Taj-Taj is how to transport her daughter to school and rugby practice. Ms. Taj-Taj testified that her daughter attends a school outside of their residential catchment area, in large part because she is a high school rugby prospect hoping to get a post-secondary scholarship for rugby. She attends a special high school for this purpose and has daily practice approximately 50 km away in Collingwood. Prior to the impoundment, Ms. Taj-Taj would drive her daughter to school and to practice every day.

16Section 10(4) of the Regulations state that in order to demonstrate 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.

17Since the impoundment, Ms. Taj-Taj’s ability to drive her daughter has been severely limited. Ms. Taj-Taj testified that she rented a car, but could only afford that for one week before she ran out of money, being on social assistance. The Registrar pointed out, and Ms. Taj-Taj confirmed, that she does own another car, but the evidence before the Tribunal is that the car has been in a mechanic’s garage for the better part of a year and has an inoperable engine, meaning the cost of getting it into working condition would be prohibitive. In other words, the financial realities for Ms. Taj-Taj have made renting or procuring another car an infeasible alternative to the impounded vehicle.

18Ms. Taj-Taj testified that she has also looked into public transit options, but that there are none that would permit her daughter to attend school and then rugby practice 50 km away. In addition, Ms. Taj-Taj testified that because they live outside of the catchment area for the school there is no school bussing available for her daughter.

19Ms. Taj-Taj also inquired with friends and her daughter’s peers as to any other options to get to school and practice. According to her, and uncontroverted by the Registrar, there are none given the level of commitment involved in transporting her daughter.

20Therefore, the Tribunal finds that Ms. Taj-Taj has demonstrated that there is no alternative to the impounded car for the purposes of taking her daughter to school and rugby practice.

21Turning now to the remaining factors in section 10 of the Regulation, Ms. Taj-Taj’s daughter is a person ordinarily transported by the car. The Tribunal finds that the impoundment will result in a loss of an educational or training opportunity through the inability to attend school and high-level athletics. Ms. Taj-Taj testified that her daughter has begun to miss school and rugby practice. There was no evidence to contradict Ms. Taj-Taj’s evidence that her daughter faces expulsion from the school’s athletic program if she continues to miss days. Such a loss would be immediate in that Ms. Taj-Taj’s daughter would not be able to attend school or participate in athletics, significant in that attending school is the single most significant activity in which most teenagers engage, and long-lasting in that it will likely affect her scholarship chances which may limit her ability to seek post-secondary education and the life-long benefits that may result.

Therefore, the Tribunal finds that Ms. Taj-Taj has satisfied her onus of demonstrating that the impoundment will result in exceptional hardship as described in section 10 of the Regulation.

ORDER

22After considering all the evidence provided, and based on the reasons below, the Tribunal directs the Registrar to release the vehicle and pay on behalf of the owner the amount incurred by the owner, as a result of the impoundment, for removing and impounding the vehicle not including any amount for economic losses.