Yanese Palmer v. Registrar of Motor Vehicles, 2019 CanLII 76855

Date: 2019-08-13

File Number: 12141/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Yanese Palmer

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: D. Gregory Flude

Appearances:

For the Appellant: Yanese Palmer, Self-Represented

For the Respondent: Steve Grootenboer, Agent

Hearing heard by Teleconference on: July 16, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on July 16, 2019 to consider the appellant’s appeal of the 45-day impoundment of her 2012 Honda CCL (the “Vehicle”), pursuant to Section 55.1(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The Vehicle was impounded on May 31, 2019.

2The appellant submits that the impoundment of the Vehicle resulted in exceptional hardship.

ISSUE

3The issue to be determined is whether the impoundment of the Vehicle has resulted in exceptional hardship to the appellant.

RESULT

4I find that the applicant has failed to prove on a balance of probabilities that she suffered exceptional hardship as a result of the impoundment.

ANALYSIS

5Section 50.2 of the Act provides limited grounds for appealing a 45-day vehicle impoundment:

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(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;

(b.1) 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 subject to the condition described in paragraph 2 of subsection 55.1 (1);

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine 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 or subject to the condition described in paragraph 2 of subsection 55.1 (1); or

(d) that the impoundment will result in exceptional hardship.

6The applicant conceded at the outset of the hearing that the only ground applicable to her fact situation was the ground of exceptional hardship. It was clear from the documents relied on by the Registrar and conceded by the applicant that the Vehicle was not stolen at the of impoundment; the driver’s licence at the time was under suspension; and the applicant made no attempt to exercise due diligence. I find that this impoundment was in accordance with the s. 55.1 of the HTA, leaving exceptional hardship as the only ground of appeal.

7I drew the applicant’s attention to s. 10 of O. Reg 631/98 at the outset of the hearing which sets out various factors and criteria that the Tribunal must consider in considering exceptional hardship. It is a recurrent theme in that section that there be no alternative to the Vehicle before I can find that there is exceptional hardship. S. 10(4) puts the onus on the applicant to 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.

8In her evidence the applicant reviewed her medical condition and her normal uses of the Vehicle. She testified that she has a disability - scoliosis of the back that can result in debilitating pain to her back and neck. At its worse, the applicant is bedridden as a result of the pain. The condition is chronic, and she is not currently undergoing any active treatment such as physiotherapy, massage, or chiropractic. As a result of her condition she receives a disability payment. She did not miss any medical appointments during the impoundment period. The Vehicle does not have any special adaptive equipment to accommodate her medical condition.

9With respect to her normal use of the Vehicle, the applicant testified that she uses the Vehicle approximately 5 times per week in the winter and 2 to 3 times in the summer. She visits her mother and they go shopping. The Vehicle also lets her get around generally.

10One major use of the Vehicle during the school year is to pick up the applicant’s five-year old nephew from school. The appellant’s sister will drop her nephew off at school but, as both she and her husband are working, there is no-one to pick him up after school. This would normally be done by the appellant.

11During the approximately 3 weeks from the date of the impoundment until the end of the school year, the applicant’s nephew took cabs home from school. I understand that he would also take cabs on those occasions when the applicant’s back condition was too severe for her to drive.

12Since the impoundment, the applicant has relied on friends and family for rides when necessary. She does not like to inconvenience others by asking for rides and, in fact, bought the car so she would not have to do so. When no-one is available to give her a ride, she takes cabs. There is also bus service in the area and 911 emergency services are available.

13Having considered the evidence, I am not satisfied on a balance of probabilities that the impoundment will result in exceptional hardship. There is no threat to the health or safety of any person who ordinarily rides in the Vehicle. 911 emergency services are available. There are alternative means of transport available to the applicant, albeit that they cause her some measure of embarrassment to ask for others to give her rides. Even with respect to the applicant’s nephew, the evidence discloses that the effect of the impoundment was simply the more frequent use of cabs to take him home, as the use of cabs was normal when the applicant’s back condition rendered her unable to pick him up.

14In placing the word “exceptional” before the word “hardship,” it appears clear to me that the Legislature intended something more than inconvenience and embarrassment. The word “exceptional” implies that the hardship must be the exception and nothing in the applicant’s evidence convinces me that her circumstances are any worse than the inconvenience anyone suffers who loses the use of their vehicle for 45 days.

LATE-FILED EVIDENCE

15After the hearing but before the release of this decision, the appellant forwarded documentary evidence to the Registrar that had not been tendered in the hearing. The evidence consisted of payment records from the Ontario Disabilities Support Program. The Registrar forwarded the payments records to the Tribunal with a submission that noted that these documents were filed after the hearing.

16In the absence of a clear objection from the Registrar to the admissibility of these records, I have decided to admit them into evidence. The records do not assist the appellant. I was aware from her testimony at the hearing that she was receiving disability support and I had taken that factor into account when weighing the evidence of exceptional hardship. These records merely confirm that appellant’s oral evidence at the hearing.

ORDER

17For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the impoundment order.