Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-12-14

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:

Jutta A. Kaufmann

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avvy Go, Member

APPEARANCES:

For the Appellant

Jutta A. Kauffman, Appellant Douglas Hopkins, Observer

For the Respondent

Sonia DeSantis, Agent

Held by Teleconference:

December 7, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Jutta Kaufmann appeals the 45 days impoundment of her motor vehicle on the grounds that the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on October 11, 2020 and a hearing was held on December 7, 2020, by teleconference, to consider the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

3For the reasons set out below, I confirm the impoundment.

B. ISSUES:

4The issue under the appeal is whether the impoundment will result in exceptional hardship.

C. LAW:

5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations.

6The impound period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of s. 50.2(3)(d) which states that the Tribunal may order the Registrar to release the motor vehicle where the impoundment will result in exceptional hardship.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.

9Section 10 (4) sets out what an appellant must show in order to meet this initial prong of the test:

10 (4) In order to show that no alternative to the impounded motor vehicle is available… 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.

10If the Tribunal finds that the appellant has no alternative to the impounded vehicle, s.10(1) then it shall consider whether the impoundment will result in,

a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 456/10, s. 3.

11In the limited circumstances outlined below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s.10(2) of the Regulation:

• financial or economic loss to any person;

• loss of employment or employment opportunity to any person; or

• loss of education or training or of an educational or training opportunity to any person.

12Financial, employment and educational losses may only be considered if all the criteria listed in s.10(3) of the Regulation are met:

a) no alternative to the impounded motor vehicle if available;

b) the loss will be immediate, significant and lasting;

c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

d) the impact of the loss,

i. will be upon a person other than the person whose driving while his or his driver’s licence was under suspension resulted in the impoundment of the motor vehicle; and

ii. will be a result of a loss by the suspended driver of the type set out in clause 2(b), (c) or (d)

13Sections 10 (2) and 10 (3) together establish other factors that may or may not be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) “inconvenience to any person” in determining exceptional hardship.

14The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

15Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

D. ANALYSIS:

Background

16The appellant’s vehicle was impounded because her roommate had driven her vehicle. The roommate’s licence has been under suspension due to prior criminal convictions and a failure to complete a remedial program since 2011.

17The appellant suffers from mental health challenges. Her siblings helped the appellant purchased a small hobby farm where she is currently living. Her siblings co-own the property with the appellant.

18As a senior, the appellant is receiving Old Age Security, Guaranteed Income Supplement and Canada Pension Plan, altogether at about $1400 a month. Occasionally, the appellant takes on odd cleaning jobs, earning about $300 to $400 a month. She also collects $200 a month from her roommate, the driver who caused her vehicle to be impounded. Her roommate attended the hearing as a supporter but did not testify.

Is there No Alternative to the Impounded Vehicle?

19The first question I need to consider is whether there is no alternative to the impounded vehicle. For the reasons set out below, I find there are alternatives to the impounded vehicle.

20The appellant lives about 20 minutes drive away from the nearest city. The appellant uses her vehicle mostly for grocery shopping. During the impoundment period, a friend of hers helped her get grocery.

21The appellant sees a psychiatrist on a regular basis to monitor her health situation. She last saw the psychiatrist about 2 to 3 weeks before the hearing. She was able to get a ride to get to her medical appointment. Her next appointment is by phone. The appellant diligently takes her medication, which is delivered directly to her home.

22When asked by the Registrar if she had any other friend assisting her during the impoundment, the appellant replied no but added that she would have been in lockdown any way. The appellant also added that there is a local small grocery store about 10 km away. Her neighbours would help her get grocery if she needed anything. While the impoundment was hard, the appellant was able to get by with the support from the local community.

23Essentially, through the support of her friend and neighbours, the appellant was able to get to her doctor’s appointment and do grocery shopping. While I appreciate the appellant’s point that she does not like to rely on others, and that she has been very self sufficient, the fact remains that there are alternatives available to the appellant during the impoundment period.

Is there Exceptional Hardship?

24If I am wrong about my finding as to an alternative to the impounded vehicle, I still find that the appellant has not established there is exceptional hardship for the following reasons.

i. Is there threat to the health or safety of any person ordinarily transported by the motor vehicle?

25I first determine whether there is any threat to the health and safety of any person ordinarily transported by the motor vehicle, and the answer is no.

26The appellant was asked directly whether the impoundment has any impact on her health. The appellant’s response was equivocal: “I don’t know. It is complicated. I am sure it has an effect on me.” The appellant was also asked if she spoke to her psychiatrist about the impoundment and its affect on her. The appellant said she could not remember. She did however recall the doctor asking how she was doing and whether the medication as working. While I appreciate that the appellant’s memory may not be good, given she was able to recall what the doctor asked her, it is more likely than not that she has not advised the doctor about the impoundment, if she could not recall having this conversation with the doctor.

27More importantly, the appellant confirmed that she did not experience any medical event or episode during the impoundment period that would require a third-party intervention. She is still able to get all her prescription. The last time she went to the hospital was just before the impoundment when she experienced dizziness.

28The appellant also does not provide any information about anyone else who she transports in her vehicle and if their health and safety has been threatened.

29Therefore, I find the appellant has failed to establish exceptional hardship on the ground of threat to health and safety.

ii. Is there any economic loss that is immediate, significant and lasting

30The appellant’s main concern is about the financial impact of the impoundment. In addition to the $3000 that she had paid for the release of the vehicle, the appellant also has to pay property tax bill of about $5,000, $2,000 for her dental work, and additional cost to take her dog to a veterinarian.

31The appellant testified she was advised by the municipality that her house would-be put-on sale if she fails to pay her property tax by the end of the year. The appellant clarified that she was asked to pay at least $1,000 by year end, and the rest by installments to prevent the sale from happening.

32I appreciate that the appellant has suffered financial loss. As a pensioner on a fixed income, the $3,000 impoundment fee is quite a significant amount for the appellant.

33Having said that, I also agree with the Registrar that the impoundment fee itself cannot be considered exceptional hardship. The property tax bill pre-exists and is not caused by the impoundment. The same can be said about the dental bill and veterinarian bill. Besides, given that her siblings are on title, they are just as liable for the property tax bill and hopefully will help shoulder that burden. While the appellant does suffer some financial loss, namely, she was unable to take on cleaning job during the impoundment period, the loss of $300 to $400 cannot be said to be significant or lasting.

34The appellant also did not experience any interruption with respect to the government benefits she needs to support herself.

35I note that the appellant was able to borrow money to cover the impoundment fee. I hope that the appellant would be able to reach out to her family again for any additional help if she needs it.

36Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

37For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant’s motor vehicle.