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:
Kaleigh Simpson
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Date of Teleconference Hearing: July 31, 2019
REASONS FOR DECISION AND ORDER:
Overview
1The appellant appeals the July 10, 2019 impoundment of a 2017 RAM pick-up (“vehicle”). The vehicle was impounded for 45 days when police discovered it being driven by D.C., a suspended driver and the appellant’s domestic partner.
2The appellant’s single ground for appeal is that in her circumstances the impoundment will result in exceptional hardship.
DECISION
3The impoundment is confirmed for two reasons:
Exceptional hardship is not a ground for appeal where, as in this case, there has been a previous impoundment of an owner’s vehicle.
Even if exceptional hardship was available as a ground for appeal, on the facts presented the appellant has not established that the impoundment will result in exceptional hardship according to the criteria set out in a regulation under the Act.
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 an impoundment for a suspension 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.
8However, s. 50.2(4) of the Act provides that exceptional hardship is not available as a ground of appeal:
“… if there was a previous impoundment under s.55.1 with respect to any motor vehicle then owned by the same owner.”
DECISION and ANALYSIS
Registrar Raises Jurisdictional Issue
9At the hearing the Registrar introduced current MTO records that indicated that currently and at the time of impoundment, the registered owner of the impounded vehicle was D.C. and not the appellant.
10The Registrar argues that the Act gives a right to appeal an impoundment to the “owner” of the impounded vehicle. In this case the appellant is not the owner and therefore has no right to appeal.
11The appellant testified that D.C. transferred the vehicle to the appellant before the impoundment by completing the transfer application attached to the vehicle registration permit. The MTO requires that the transfer be registered with the MTO within a certain number of days (the appellant thought 10) and the vehicle was impounded before the transfer was registered. According to the appellant, she was the owner of the vehicle although her ownership had not yet been registered with the MTO.
12I declined to consider this issue on the basis that it was essentially a motion to dismiss for lack of jurisdiction and it was made without notice to the appellant.
13I note that a case conference was held on July 23, 2019. The case conference Order states that the single issue for determination at the hearing is whether the impoundment will result in exceptional hardship. Apparently, lack of jurisdiction was not raised at the case conference.
14The Registrar provided no written notice of motion, or other notice, that indicated that this would be raised at the hearing.
15I concluded that it would be unfair to the appellant to consider this issue without any prior notice.
16I therefore declined to consider it and proceeded to consider the appeal on its merits.
Exceptional Hardship Not Available as a Ground of Appeal
17“Exceptional hardship” is one of the four grounds upon which an impoundment can be appealed. However, s. 50.2 (4) of the Act provides that exceptional hardship is not available as a ground of appeal if there was a previous impoundment under s. 55.1 with respect to any motor vehicle owned by the same owner.
18According to MTO records introduced into evidence, on April 10, 2019, a Buick Enclave registered to the appellant was impounded under s. 55.1 in Iroquois Falls Ontario for 45 days when it was discovered by police being driven by D.C.
19The Appellant confirmed that vehicle was impounded and stated that it is in the process of being sold to the impound facility because she is unable to pay the cost of retrieving it.
20I conclude that since there was a recent impoundment of a vehicle owned by the appellant, s. 55.1(4) prohibits the appellant from relying on exceptional hardship as a ground of appeal
21However, even if the undue hardship was available to the appellant as a ground of appeal I find in this case that there is no undue hardship for the following reasons.
Appellant’s Circumstances
22According to the appellant, the hardship that will result from the impoundment is mainly financial and due to the cost of the impoundment, estimated at $2300.
23The appellant lives in North Bay, Ontario. She is the mother and primary caregiver of 4 children, the oldest of whom is 6 years old. The children’s father does not provide any financial support. The appellant lives with her domestic partner (D.C.) who is not the father of her children. D.C. pays for half of the rent (which in total is $1,750/month) and hydro but does not otherwise provide financial support.
24The appellant is receiving Ontario Works payments of approximately $1200/month and Canada Child tax credits of approximately $2165/month. She is not currently employed but will be attending college in September. At that point the Ontario Works payments will cease but, as a member of a First Nation, she will receive financial assistance from her Band.
25The appellant testified that the cost of impoundment will be about $2300 at the end of the 45-day period and she does not have that money or the ability to borrow it. The income from the child tax credit is used up to pay for the children’s expenses and her remaining income is consumed by rent, hydro and household expenses. She does not have a credit card and her bank has declined her request for credit. The appellant states that her family members are not in a position to provide her with financial assistance.
26According to the appellant, her children are in daycare and she either takes them on a bus or walks them to their daycare. Walking takes 30-40 minutes each way and they must be taken there and picked up on a daily basis. Although the appellant is not employed at the moment, if she takes the children out of day care until September, they will lose their place and be placed on a waiting list to get back in. Thus, the appellant must keep her children in day care now to ensure they will have day care in September when she begins college.
27According to the appellant, she has been able to get the children to day care each day, either by walking or taking a public bus.
28The appellant lives in North Bay primarily to attend college. Her family and relatives live about two hours away by car and are unavailable to assist with the children. Her children’s doctors and dentist are located near her family’s home and she requires a vehicle to attend appointments. Her family cannot readily assist with that because of their distance.
29The appellant testified that the vehicle was impounded on July 10, 2019 and so far she has not missed any of the children’s dentist or medical appointments although she had to re-schedule one.
The Criteria to Determine Exceptional Hardship
30Section 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.
31Firstly, I am prohibited from considering inconvenience to any person in determining whether exceptional hardship results from an impoundment (s.10(2)).
32Secondly, I am required to consider whether an alternative to the impounded vehicle is available. If no alternative is available, I am required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle (s.10(1)).
33In order to show that no alternative is available, the appellant 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.
34Thirdly, the regulation (s.10(3)) provides that l may only consider financial or economic loss as exceptional hardship if the appellant demonstrates (among other things) that no available alternative to the impounded vehicle is available.
35Taking those criteria into account, I conclude that the appellant has not demonstrated exceptional hardship.
36Since the impoundment, the appellant has not been employed and has not required a vehicle to get to work. The impoundment has not resulted in a loss of income. She has been able to get her children to day care by utilising alternatives to the impounded vehicle - a mixture of walking and public transport.
37Although the children’s regular dentist and doctors are two hours away and one appointment had to be rescheduled, there was no evidence of any threat to the children’s health and safety resulting from the impoundment.
38No doubt that the impoundment has been stressful for the appellant and difficult to manage with four small children. However, in my view, those difficulties amount to significant inconvenience and do not rise to the level of exceptional hardship.
39The appellant states that the impoundment will also result in exceptional hardship because it will cause her a financial loss - the cost of the impoundment itself estimated to be $2,300.
40However, the regulation provides that I may only consider financial or economic loss if the appellant demonstrates that there is no available alternative to the impounded vehicle. As stated above, I have concluded that alternatives are available to the appellant.
SUMMARY
41Exceptional hardship is not available to the appellant as a ground of appeal because of the earlier impoundment.
42Taking into account the criteria set out in the Regulation and the appellant’s circumstances, I conclude that the impoundment will not result in exceptional hardship.
ORDER
43For 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 13, 2019