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
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:
June C. Marchildon
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: June C. Marchildon, Self Represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: May 14, 2020
REASONS FOR DECISION AND ORDER:
Overview
1The appellant appeals the impoundment of her 2011 Chevrolet Avalanche (“vehicle”).
2The vehicle was impounded on April 26, 2020 for 45 days when police discovered it being driven by the appellant’s father whose driver’s licence was under suspension for a previous drinking and driving offence.
3The appellant’s single ground for appeal is that in her circumstances the impoundment will result in exceptional hardship.
DECISION
4The impoundment is confirmed. Based on the criteria set out in the Highway Traffic Act and regulations, I conclude that the appellant has not established that the impoundment will result in exceptional hardship.
PRELIMINARY MATTER
5This matter was originally scheduled to proceed on May 14, 2020 as a case conference. It was anticipated that the conference would provide an opportunity for the parties to clarify the issues, identify the precise ground of appeal, discuss possible resolution and, if necessary, agree on a hearing date and a schedule for the exchange of documents and witness summaries.
6At the outset of the case conference, the appellant stated that instead of a case conference she would like to proceed directly to a hearing so that a decision could be made on her appeal soon as possible. The appellant stated that her only ground of appeal was that the impoundment will result in exceptional hardship. She intended to rely solely upon her own testimony and did not intend to call any other witnesses or submit any documents at the hearing.
7The respondent’s agent agreed with the appellant’s request and stated that he was also prepared to proceed directly to a hearing. The Registrar intended to submit documents to the Tribunal at the hearing in order to establish that the vehicle was owned by the appellant and was impounded after it was discovered being driven by a suspended driver. However, the parties agreed to the following facts which eliminated the need for that evidence:
(a) The appellant was the owner of the impounded at all relevant times.
(b) The vehicle was impounded on April 26, 2020 for 45 days after it discovered by local police being driven by the appellant’s father.
(c) At the time the vehicle was detained for impoundment the appellant’s father’s driver’s licence was under suspension due to a previous drinking and driving offence.
8I informed the parties that eliminating the case conference would deprive them of the opportunity to informally discuss resolution, submit documents, and receive copies of the other party’s documents beforehand. However, both parties were of the firm view that proceeding directly to a hearing was appropriate in the circumstances. Consequently, the case conference was converted into a hearing on the consent of the parties and both the appellant and the Registrar’s agent provided evidence and submissions.
THE LAW
9Under 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 offences.
10The owner of an impounded vehicle may appeal the impoundment to this Tribunal and on an appeal the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.
11HTA 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.
12The ground upon which the appellant relies is “…that the impoundment will result in exceptional hardship”. (HTA, s. 50.2(3)(d).
13Section 10 of Ontario Regulation 631/98 under the H.T.A. (the “Regulation”) provides that in determining whether an impoundment will result in exceptional hardship the Tribunal must 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.
14The Regulation prohibits the Tribunal from considering financial loss in determining whether an impoundment will result in exceptional hardship unless the owner demonstrates that there is no available alternative to the impounded vehicle.
15In order to show that no alternative to the impounded vehicle is available, the Regulation states that 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.
APPELLANT’S CIRCUMSTANCES
16The appellant lives in Timmins, Ontario and is employed at a homeless shelter. The shelter currently has three locations and the appellant works in shifts at all three locations. One location is about 30 minutes from her home and the other two are 15 and 10 minutes away. The appellant requires a vehicle to get to work. There is no suitable public transportation that can get her to those locations.
17According to the appellant, her parents are both seriously ill and her mother has about one month left to live. Her parents live separately. Neither has a vehicle and depend on the appellant to meet their transportation needs including visits to their physicians, medical tests, banking and groceries. The appellant also has two grandchildren that stay with her on the weekend that require transportation and a daughter-in-law who relies on the appellant for some of her transportation needs such as getting groceries.
18The appellant’s vehicle was impounded on April 26, 2020 and during the first week of the impoundment she had no vehicle. She stated that she took taxis and sometimes got a ride to work from a co-worker. However, that was unsustainable in the long run – she works shift work at 3 different locations and could not rely on getting rides from work colleagues. Taking taxis was unaffordable - a one-way taxi fare to her closest work location was $16 and $60 to the farthest location.
19The appellant stated that her sister-in-law has helped with her parent’s transportation needs although the sister in law works full time and is not always available.
20As a result, the appellant rented a very small vehicle which costs her $20/day and will cost approximately $850 for the duration of the impoundment. According to the appellant, she will also be faced with the cost of the impoundment itself. The impound facility has told her that cost will be approximately $4,000 which, together with the cost of the rental vehicle, will consume all of her savings.
EXCEPTIONAL HARDSHIP NOT DEMONSTRATED
21Considering the criteria for determining exceptional hardship contained in the HTA referred to above, I cannot conclude that the appellant has demonstrated that the impoundment will result in exceptional hardship.
22In order to determine whether an impoundment will result in exceptional hardship, the Regulation requires me to first consider whether no alternative to the impounded vehicle is available and if not, whether the impoundment will result in a threat to the health and safety of a person ordinarily transported by the vehicle.
23In this case, the appellant’s parents are seriously ill and they are normally transported in the impounded vehicle to their doctor and other medical appointments. However, an alternative to the impounded vehicle is available - the appellant has been able to rent a replacement vehicle. Although the cost of the rental is difficult for the appellant to bear, especially in addition to the cost of the impoundment itself, the appellant has the financial resources to secure an alternative vehicle.
24The appellant will experience a financial loss due to the impoundment - approximately $5,000 in total. According to the appellant there is little chance she will recover that from her father. However, the Regulation states that I may only consider financial loss in connection with exceptional hardship if the owner demonstrates that there is no alternative to the impounded vehicle. In this case, an alternative to the impounded vehicle is available to the appellant.
SUMMARY
25I have no doubt that the appellant’s difficult personal circumstances have been made more difficult by the lack of her vehicle. However, the appellant has been able to secure an alternative to the impounded vehicle. Given the criteria for determining whether the impoundment will result in exceptional hardship, I conclude that the impoundment will not result in exceptional hardship.
ORDER
26For 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: May 22, 2020