Nicole Frazer v. Registrar of Motor Vehicles, 2020 CanLII 34381

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: 2020-05-13

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:

Nicole Frazer Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: John Kromkamp, Member

Appearances: For the Appellant: Nicole Frazer, Appellant For the Respondent: Stella Velocci, Agent for the Respondent

Place and date(s) of hearing: By teleconference on May 12, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1At about 11:40 PM on April 1st, 2020, a 2011 Dodge automobile was stopped on Alber St. in Central Huron. The driver was Gerald Reid whose license to drive had been suspended upon his conviction in 2019 for failure to remain at the scene of an accident. His license suspension continues until September 19, 2022. As a result, the vehicle was detained at the scene and removed to an impound facility to be held for a period of 45 days. The appellant, Ms. Frazer, is the owner of this vehicle and Mr. Reid is her fiancé. The impoundment ends on May 16, 2020 when Ms. Frazer may recover her vehicle, subject to payment of any towing and impound costs.

2Ms. Frazer has appealed on the basis that the impoundment results in exceptional hardship.

3I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) and regulations. While the impoundment of the appellant’s car has caused stress, inconvenience and some increased costs for the appellant, she has not demonstrated that there is no alternative to the impounded vehicle, as she has successfully relied on friends and relatives to address her somewhat limited requirements for access to a motor vehicle. Accordingly, I confirm the impoundment.

B. ISSUES:

4The appellant raises a single issue on this appeal. Will the impoundment result in exceptional hardship?

5The owner of the motor vehicle, the appellant, must establish the grounds of appeal raised on a balance of probabilities.

C. EVIDENCE:

6Ms. Velocci, representing the registrar provided documentary evidence that established the following facts that are not in dispute.

7Ms. Nicole Frazer is the owner of a 2011 Dodge automobile bearing an Ontario license plate number. Mr. Gerald Reid, her fiancé, was driving the car at 11:40 pm on April 1, 2020 when he was stopped by police. His license was suspended in 2019 and remains suspended until September 19, 2022. The car was detained at the scene and removed to an impound yard for a period of 45 days. Ms. Frazer was notified that on May 16, 2020 she could recover her vehicle, subject to payment of towing and storage costs.

8Ms. Frazer testified that she was not feeling well that day and her fiancé offered to get her some food. She said that she thought he would walk across the street to buy her something rather than leaving in the car. He was stopped shortly thereafter. She believes he was stopped because a license check would have revealed that her license was also suspended for unpaid fines at that time. On her evidence she had been driving while under suspension herself. She testified she had not realised her license was suspended.

9The appellant advised that she had quit her job as a part-time concierge at a residential building as there is no public transit in her community and cab fare was $60.00, making the employment economically unviable. The appellant did concede that her sister could sometimes drive her but would charge $75 for three days transportation. The appellant had only commenced this part time employment a few weeks before her car was impounded. The appellant advised that she expected the position could be available to her again once she recovered her car

10The appellant has had difficulty arranging grocery shopping, having to rely on others for transportation. Although a grocery store is nearby, her view was that their prices were too high. She has three children and custodial arrangements with the older two are made difficult by the lack of a car. With COVID-19 isolation, coping with her children without access to a vehicle has become difficult. She is currently residing with her grandparents while Mr. Reid is staying elsewhere. She has been on ODSP for some time and is currently receiving this support. She receives about $1450 per month and pays some $650 to her grandparents as rent.

11Ms. Frazer has several health issues. However, she advised that she continued to have consultations with her doctor by way of video conference. She also advised that there is 911 service in her community and a hospital, albeit with some restricted hours nearby. Ms. Frazer testified that her grandparents owned a car and that she had access to it from time to time when driving with her grandmother. Her parents live about 15 minutes away and also have a car but according to Ms. Frazer they are “constantly on the go”.

D. LAW:

12Under 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. The impound period is 45 days if there has been no previous impoundment in the last two years.

13Subsection 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 has appealed on the basis of paragraph (d) of subsection 50.2(3), which states:

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.

14Section 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, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show 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.

15If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), 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.

16While in very limited circumstances the tribunal may consider financial, employment or educational loss, pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

17Following a hearing, under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

18There is no doubt that the impoundment of the appellant’s car has caused her great inconvenience. As noted from the legislation referred to above, inconvenience is not only not enough but it is not even a consideration in determining weather to confirm the impoundment or not.

19In determining whether the impoundment has caused excessive hardship, the tribunal first must consider whether there were other alternatives to impoundment available to the appellant. On the evidence placed before the tribunal I find that Ms. Frazer had other alternatives. Although cab fare might have made commuting to work unviable, it was still available to her for other errands and obligations. Similarly, she has been able to rely on relatives and some friends to provide transportation for her day to day travel needs. Indeed, she resides with her grandparents who have a car that she has used during this time. While scheduling may be an inconvenience, it is not a basis for finding that there were no alternatives to the impounded vehicle.

20Accordingly, the appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

21Even if I had found that there was no alternative to the impounded vehicle, I would find that the appellant has not made out a case for ordering the release of the vehicle by the Registrar.

22While Ms. Frazer has several health problems, she can obtain medical services, has access to hospital and 911 services. She has access to family and others to assist her if necessary. Although her health issues are serious, there was no evidence that any of these issues are expected to require urgent or emergency care. The impoundment itself is not a threat to her health and safety.

23Although Ms. Frazer has given up her part time job, she has been receiving ODSP support throughout. She expects that her employment will be available to her once she recovers her car. Given the short duration of this recent part-time employment, its modest income compared to the stable financial support from the ODSP and potential return to the job after recovery of her car, her financial and employment losses are not crushing and not permanent.

ORDER:

24For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.