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
Between:
Jennifer McDonald
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Jennifer McDonald, Self Representative
For the Respondent: Sanjay Kapoor, Agent
Heard by Teleconference: May 13, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on May 13, 2020 to consider an appeal filed by Jennifer McDonald (the “appellant”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) relating to the impoundment of her motor vehicle.
2The appellant’s motor vehicle was impounded on April 16, 2020 on the grounds that the operator at time of the impoundment, the appellant’s boyfriend, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
3The only ground raised in the appeal is that the impoundment will result in exceptional hardship.
4For the reasons set out below, the impoundment is confirmed and the appeal.is dismissed.
ISSUE:
5The issue to be determined in this appeal is whether the appellant has established exceptional hardship as defined by the Act and regulations. The respondent, the Registrar of Motor Vehicles argued only that the appellant has not established that no alternative to the impounded motor vehicle is available.
THE LAW
6Section 10 of O. Reg. 631/98 provides:
(1) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, 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.
(2) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an educational or training opportunity to any person.
(3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and (d) if 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).
(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), 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.
THE FACTS
7The appellant is a single mother of three who cohabits with her boyfriend. She has two boys, 16 and 11, and a baby girl who recently turned one.
8The appellant’s ex-husband lives in another city, which is about a one hour drive from the city in which the appellant lives. Their sons live primarily with the appellant, but they spend every Wednesday evening and every other weekend with their father. He and the appellant share equally the driving of the boys between the two cities, whereby one of them drives them to the other parent’s home and the other parent returns them.
9As the appellant does not have access to another vehicle to transport her sons to and from their father’s home she inquired into the availability of public transit. The bus that normally operates between the two cities is not running due to corona virus restrictions. Thus, since the impoundment of her vehicle the appellant has utilized Uber which costs her about $75 per trip, or $150 per week.
10The appellant shops for groceries twice a week. She takes Uber to and from the grocery store. This costs her about $40 per week.
11The appellant suffers from an anxiety disorder for which she takes medication. Before the end of the 45-day impoundment period the appellant will have to renew her prescription. In addition, her daughter has a doctor’s appointment during the impoundment period. Having to travel by Uber and transporting her daughter by Uber has compounded her anxiety.
12As the appellant was laid off work due to the corona virus restrictions, she does not need a vehicle to travel to work.
13The appellant testified that as she has not been working since the corona virus restrictions were put in place, she will not be able to pay the impoundment and storage fees.
ANALYSIS
14The primary basis of the appellant’s claim of exceptional hardship rests on two additional expenses she has been incurring. The lesser of the two is about $40 per week to get to and from the grocery store. The greater cost is to get her sons to and from their father’s home which totals about $150 per week.
15The test for exceptional hardship as set out in the regulations is quite onerous and presupposes that having one’s vehicle impounded will result in some degree of hardship. However, before this Tribunal can consider whether the hardship experienced by an appellant meets the standard of being “exceptional”, an appellant must first establish “that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person”, as required by section 10(4) of the regulation.
16I am not satisfied that the appellant has met this prerequisite. In regard to the $150 she spends each week for transportation for her sons, she has not asked her ex-husband if he would transport the boys in both directions during the impoundment period and in exchange, she could drive them both ways after the impoundment period to make up for the additional trips. She is reluctant to ask her ex-husband. However, this means that she has failed to consider or inquire into every reasonable alternative alleviate this expense.
17As for the trips to the grocery store, the appellant has found an alternative, that being taxis or Uber. She can also use such services to take her daughter to her doctor’s appointment. As for the prescription renewal, the appellant can use the same means to attend at the pharmacy or she could inquire whether the pharmacy will deliver the prescription. She can also take her daughter to her doctor’s appointment via taxi or Uber.
18For the financial impact of the impoundment of her vehicle to result in a finding of exceptional hardship, she must meet the test set out in section 10(3)(b) of the regulation. It requires that the loss will be immediate, significant and lasting. Her evidence does not meet this test in regard to the taxi and Uber expenses. As for the appellant’s testimony that she cannot afford the cost of the impoundment and storage fees, this Tribunal has consistently ruled that the financial difficulty an appellant will experience in this regard is not a factor to be considered in determining if the appellant will suffer a financial or economic loss as provided for in sections 10(2) and (3) of the regulation.
19The appellant testified that having her children ride in taxis or Uber vehicles has aggravated her anxiety. She has not established that the impact this has had on her condition constitutes a threat to her health or safety, as required by section 10(1)(a) of the regulation.
20Based on the totality of the evidence it is my determination that the appellant has not met the prerequisite test required under the regulation, that being that she must prove that she has considered and inquired into every reasonable option to the use of the impounded vehicle. In addition, any hardship she has experienced and will continue to experience does not rise to the level of exceptional hardship.
ORDER
21For the reasons set out above the appeal is dismissed and the impoundment is confirmed.
LICENCE APPEAL TRIBUNAL
Theodore Crljenica,
Member
RELEASED: May 15, 2020