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:
Erin Hall
Appellant
-and-
Registrar of Motor Vehicles
Respondent
ORDER
Panel: Jennifer Friedland, Member
Appearances:
For the Appellant: Self Represented
For the Respondent: Stella Velocci, Agent
Place and date of hearing: By teleconference, April 6, 2020
REASONS FOR DECISION
Overview
1This is an appeal of a motor vehicle impoundment. The appeal was heard by teleconference on April 6, 2020, following which I ordered the Registrar to release the appellant’s motor vehicle pursuant to s. 50.2 (5) of the Highway Traffic Act (the Act) on the grounds of exceptional hardship.
2I indicated in my Order that written reasons would follow. These are my reasons.
Background
3The appellant’s motor vehicle was impounded for 45 days under s. 55.1 of the Act. This provision allows a police officer to detain and then impound a motor vehicle in certain circumstances, including if the person driving the vehicle at the time has a suspended driver’s licence for a criminal code-related reason. In this case, the driver was the appellant’s boyfriend. His licence had been suspended since 2017 following an impaired driving conviction.
Issue
4An owner whose car is impounded under s. 55.1 has limited grounds to appeal the impoundment. These grounds are set out in section 50.2 (3) of the Act. The appellant appealed on the grounds set out at s. 50.2 (d), that the impoundment will result in exceptional hardship.
Result
5The vehicle was ordered released on the appealed ground following the hearing on April 6, 2020.
6The most salient factor in my finding that the impoundment would result in exceptional hardship in this case was the context of the ongoing COVID-19 pandemic during the period of the impoundment. This context included the increasingly restrictive measures ordered by government to stem the spread of the virus, and the risk that contagion could cause to the health and safety of the public, including the appellant and her child. But for this context, the appellant would not have met the test for exceptional hardship. In normal times, she would have had an obvious alternative to her impounded vehicle in the form of public transportation. In COVID-19 times, this option was not a reasonable alternative for the appellant, particularly because she was also required to transport her son, who had autism and difficulty refraining from touching objects and his face while travelling by bus.
The Test for Exceptional Hardship
7The test for exceptional hardship is difficult to meet.
8Pursuant to section 10 (1) of O.Reg. 631/98 under the Act (“Regulation”), the first part of the test for exceptional hardship requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available.”
9Section 10 (4) then 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 I find that the appellant has no alternative to the impounded vehicle, s. 10 (1) then requires me to 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.
11Sections 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.
12With respect to the other factors in s. 10 (2), namely: (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; and (d) loss of education or training or of an educational or training opportunity to any person, the Tribunal may only consider those criteria if pursuant to s. 10 (3) the owner demonstrates that:
(a) no alternative to the impounded motor vehicle is 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 her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c), or (d).
13Below I will apply the facts as found by me in this case to the criteria set out above.
Facts & Analysis
14The appellant works at an appliance repair business which is a designated essential service. She presented an email from her employer confirming that her employment is deemed an essential service and she is required to work from Mondays to Fridays from 8am to 3pm. She acknowledges that she has occasionally been told she can leave early due to a reduction in business during this period but other than this exception, I accept that her work is an essential service and she is attending work each day. This fact was not disputed by the Registrar.
15To get to work without her vehicle during the period of the impoundment, the appellant had been taking the bus. She testified that the Hamilton transit company was requiring all passengers to exit and enter through the back door and that passengers were therefore all “scrunched” in the back. The appellant acknowledged that ridership has been reduced but described that there were still many people on the buses and that it was difficult to maintain social distancing on the bus.
16Ms. Hall also needs to transport her 12-year-old son by bus during the period of the impoundment. Given the closures of schools in Ontario due to the province’s emergency response, the appellant needs to provide care for her son every day while she is at work. This means that she has had to take her son with her on the bus on her way to work in order to drop him at either her father’s or her grandmother’s for care throughout the day. Ms. Hall described that her son is autistic and that it is very difficult to keep her son from touching objects and his face while riding on the bus.
17In my opinion, at a time when all members of the public are being asked to remain at least six feet away from all others and to avoid all non-essential travel, the bus, is not a reasonable alternative to Ms. Hall’s impounded vehicle in the circumstances of this case. I am satisfied that the risk of contagion on the bus to both herself and her child was amplified because of the difficulties her son faces in terms of avoiding contact with objects. Given the risks posed by the COVID-19 virus, I conclude that travel by this method poses a threat to the health and safety of both of the appellant and her son, and therefore is not a reasonable alternative mode of transportation.
18With respect to whether the appellant inquired into and considered every other reasonable alternative that could mitigate the threat to the health and safety of her and her son during this period, I am satisfied that she did. Ms. Hall testified that she lives alone with her son. While prior to the lock downs, her father or grandmother would occasionally come to her house to babysit, they do not drive and are not travelling during this period due to risk of infection. While the appellant has a boyfriend, he lives elsewhere, does not have a valid driver’s licence and is not a suitable alternative for child care. Therefore, the appellant does not have the option of having someone care for her child in her home while she takes the bus to work. She has to take him with her to drop him off for child care. I also accept that she cannot afford to travel by taxi.
19I am satisfied based on the above that the appellant had no alternative to the impounded vehicle.
20Having found that there is no alternative to the impounded vehicle, I must next turn to whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle. My reasoning above leads me to find this to be the case in the circumstances of the appellant and her son. The appellant works in an essential service. She needs to get to work. She needs to drop her son off with a caregiver in order to work. She has no reasonable alternative to her impounded vehicle in terms of traveling for child care. The alternative she has been forced to utilize – which is the bus – puts her and her son at heightened risk of contagion of COVID-19 and forces them to breach public health advisories to avoid contact with other people as much as possible. I am satisfied, based on the above, that the impoundment will result in a threat to the health and safety of the appellant and her son, both people who are ordinarily transported by the motor vehicle.
21Given this finding, it is unnecessary for me to decide whether I might also have considered financial loss, loss of employment, or loss of education in determining exceptional hardship in this case.
Conclusion
22For the reasons given above, and taking all of the evidence into consideration, I ordered the appellant’s vehicle to be released on the grounds of exceptional hardship following the hearing of this appeal on April 6, 2020.
ORDER
23An order is not necessary. The vehicle has already been ordered released by the Registrar pursuant to s. 50.2 (5) of the Act and my order dated April 6, 2020.
Licence Appeal Tribunal
Jennifer Friedland, Member
Released: May 11, 2020