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:
Lorrie Dreosto
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonya DeSantis, Agent
Date of Teleconference Hearing: August 1, 2019
REASONS FOR DECISION AND ORDER
Overview
1The appellant appeals the June 18, 2019 impoundment of her 2014 Hyundai Tucson (“vehicle”). The vehicle was impounded for 45 days when police discovered it being driven by MH, a suspended driver and the appellant’s spouse.
2The appellant’s single ground for appeal is that in her circumstances the impoundment will result in exceptional hardship.
DECISION
3The impoundment is confirmed. On the facts presented I conclude that the appellant has not established that the impoundment will result in exceptional hardship.
THE LAW
4Under the Highway Traffic Act, R.S.O. 1990, c. H.8, (“HTA”), a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose licence is under suspension, including suspensions resulting from Criminal Code convictions for drinking and driving offences1.
5The owner of an impounded vehicle may appeal the impoundment to this Tribunal2. On appeal, the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.3
6The HTA allows only four grounds on which an owner may appeal, and the onus is on the appellant to establish one or more of those grounds.
7One of those grounds, and the one upon which the appellant relies is,
50.2(3)(d) that the impoundment will result in exceptional hardship4.
8The onus is on the appellant to establish on a balance of probabilities that the impoundment will result in exceptional hardship.
9Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several factors that the Tribunal must consider, and others that the Tribunal may not consider, in deciding whether exceptional hardship will result from an impoundment.
10The Tribunal is required to consider whether an alternative to the impounded vehicle is available and, if no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
11The Tribunal is prohibited from considering inconvenience to any person in determining whether exceptional hardship results from an impoundment (s. 10(2)).
12Finally, in order to establish that no alternative to the impounded vehicle is available, the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period. (s.10(4))
Will the impoundment result in exceptional hardship?
13I conclude that the impoundment will not result in exceptional hardship.
(a) Appellant’s Circumstances
14According to the appellant, she has several medical issues and is on permanent disability. She suffers from arthritis, asthma, fibromyalgia, migraine headaches, anxiety and depression. She takes medications, including painkillers, for many of those conditions. She uses a cane to get around and cannot go grocery shopping by herself because she cannot carry anything of significant weight.
15The appellant testified that she and her spouse own one car and she requires it to get medications, seek medical consultation, testing, for check-ups and generally to get around. She normally uses the car 3 to 4 times per week and only for those purposes.
16The appellant lives with her spouse, but he is currently away during the week taking a 5-week course.
17The appellant testified that her doctor practices in a nearby town approximately 45 km away. She has been seeing that doctor on a regular basis for many years but requires a vehicle to attend appointments. There is no viable public transportation that can get her to the doctor. She has no relatives or friends in her city upon whom she can rely for an occasional ride and her disability income does not allow her to pay for taxis.
18However, the appellant also stated while the car has been impounded she has occasionally taken a public bus to pick up her medications although it is painful due to the jarring ride. Her husband sometimes picks up her medications, groceries and supplies when he is home from his course.
19Because of the appellant’s limited mobility, she regularly communicates with her doctor on the telephone and only sees him in person on an as-needed basis. In the last 6 months she has seen the doctor in person twice and spoken to him several times on the telephone. The impoundment has resulted in her missing one scheduled appointment to discuss results of previously ordered testing. That appointment was re-scheduled.
(b) Exceptional Hardship not Demonstrated
20Taking into account the criteria for determining exceptional hardship referred to above, I conclude that the appellant has not demonstrated exceptional hardship.
21The appellant suffers from medical issues that limit her mobility and she uses her vehicle mainly to attend medical appointments and pick up prescriptions, groceries and supplies.
22With respect to medical appointments, the appellant’s doctor has accommodated her restricted mobility by speaking with her regularly on the telephone and scheduling in-person visits as needed. During the impound period one scheduled visit had to be cancelled and re-scheduled. There is no evidence that the impoundment has resulted in a threat to the appellant’s health or safety.
23The appellant also needs a vehicle to pick up prescriptions, groceries and supplies. With respect to prescriptions, the appellant has been able to use public transportation although with difficulty. In addition, the appellant’s spouse returns from his 5-week course on occasion and obtains prescriptions, stocks up on groceries and supplies.
SUMMARY
24I have no doubt that the appellant’s difficult personal circumstances have been made more difficult by the lack of her vehicle.
25However, the appellant has found alternatives to the impounded vehicle including public transportation and making arrangements to do without a vehicle during the impound period. There is no evidence that the impoundment has resulted in a threat to the appellant’s health and safety.
26Taking into account the criteria for determining whether the impoundment will result in exceptional hardship, I conclude that the impoundment has not and will not result in exceptional hardship.
ORDER
27For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the Appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: August 8, 2019