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:
Michele Walker
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION & ORDER
ADJUDICATOR: Jennifer Friedland, Member
APPEARANCES:
For the Appellant: Self Represented
For the Respondent: Sonia De Santis, Agent
Held by Teleconference: May 12, 2020
REASONS FOR DECISION
Background
1The appellant’s motor vehicle was impounded on April 17, 2020 for 45 days under s. 55.1 of the Highway Traffic 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 son, whose licence had been suspended since 2018 following a conviction for driving with a blood/alcohol level “over .80” mg.
2The appeal was heard on May 12, 2020 by teleconference. Following a brief adjournment after submissions, I informed the parties of my finding that the appellant had not met the burden of proving exceptional hardship and that the impoundment would be confirmed. I advised that written reasons would follow. These are my reasons.
Issue
3An 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 ground that the impoundment will result in exceptional hardship (s. 50.2 (d) of the Act).
Result
4Following a hearing, the Tribunal has only two options open to it. Pursuant to s. 50.2 (5) of the Act, the Tribunal can either confirm the impoundment or order the Registrar to release the vehicle.
5In this case, as the appellant was informed following the hearing, the impoundment is confirmed.
6There is a specific test set out in the Regulations which specifies what must be proven by the appellant before an appeal on the ground of exceptional hardship can succeed. On the facts established at this hearing, and for the reasons given below, the appellant did not meet the exceptional hardship test.
The Test for Exceptional Hardship
7The test for exceptional hardship is set out in one of the Regulations made under the Act, in this case, Ontario Regulation 631/98 (the “Regulation). The test is difficult to meet.
8Pursuant to section 10 (1) of the 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 the appellant is able to show that she 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 [as set out in s. 10 (4)];
(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
14The appellant lives in Brantford, Ontario. She is employed as a bus driver in Hamilton. She usually works the very early morning shift. She relies on her impounded vehicle to get to work.
15For most of the period of the impoundment up until this hearing, the appellant was not working. This includes a period when she was on holiday, and a period when she was told to stay home for 14 days having shown symptoms of Covid-19.
16As of the time of the hearing, the appellant had worked for one week during the impoundment but was off-work again having been assaulted by a rider on her last day of work, which was May 4, 2020.
17The appellant is currently awaiting the outcome of a WSIB claim relating to the incident with the rider. She expects that she will be back at work between 8 and 16 days, which means she may be back by May 18, 2020 or about a week later, May 25, 2020. Her vehicle will be released from the impoundment on June 1, 2020.
18During the period of the impoundment that she worked, the appellant was able to get a ride to her shifts from her friend, a co-worker; or she borrowed her boyfriend’s truck.
19The appellant testified that getting a lift from her co-worker was not convenient for that person. Their shifts started at different times and the co-worker had to wait for her to drive her home. The appellant felt she was imposing on their friendship. In terms of whether the co-worker would be able to give the appellant a ride, assuming she returns to work, the appellant thought that it was possible but also thought that the colleague might have medical appointments and that there could be days when she would not be able to take her.
20With respect to using her boyfriend’s truck, she explained that she may not be able to borrow her boyfriend’s truck when she returns to work as he is a self-employed contractor and needs his truck for contracts. She explained that if she takes his truck, he cannot work. At the time of the hearing, he was in the middle of a contract in Kitchener.
21The appellant acknowledged that there was a GO bus that went from Brantford to Hamilton but understood that it did not run early in the morning.
22The appellant did not consider renting a car. She explained that she had a large debt owing and was worried about how much it would cost to get her car out from the impoundment. She did not have “a cushion” of additional funds.
23The appellant’s son, who lived at her home and is the one who drove her car while under suspension, had a full-time job. However, the appellant testified that he was unable or unwilling to be of any assistance financially.
24Her daughter lived in Hamilton, but she explained that staying over with her daughter in order to get to work in the morning was not possible due to social distancing requirements during the Covid19 pandemic and her higher risk of acquiring the disease given her position as a bus driver.
25With respect to obtaining groceries or other necessaries of life during the period of the impoundment, the same co-worker/friend had taken the appellant shopping on one occasion. Although she did not testify one way or the other about this, presumably she also had her boyfriend or son to assist with getting groceries.
26The appellant visited a doctor for her WSIB claim by taking a taxi. She also had pre-existing medical issues and is on medications. She acknowledged that she has not had trouble obtaining her medications during the impoundment, as they are delivered. The appellant’s mother has also been to see a doctor during the period of the impoundment and has her medications delivered as well.
Analysis
27Ultimately, I am unable to find that the appellant meets the first prong of the test for exceptional hardship.
28I find that she did have alternatives to her impounded vehicle that were reasonable in the circumstances, even if they were not ideal or convenient. Assuming she returns to work, the appellant could get a ride from her co-worker again or use her boyfriend’s truck, and if these were not available, she could look to a rental car. The GO bus would also likely be available for the return trip even if it were not available to take her to the early shift. These alternatives are also available for non-work related travel that the appellant may be required to complete during the impoundment.
29Given my finding that the appellant has not shown she has no alternative to the impounded vehicle, it is unnecessary for me to turn to the second prong of the test and examine whether not having her car (or any alternative transportation) would result in a threat to the health or safety of any person ordinarily transported by the vehicle; or whether it would lead to financial loss or loss of employment that is “immediate, lasting and significant,” as the test requires. I will however note that the facts in this case would not allow me to me to reach this conclusion in either regard.
Conclusion
30For the reasons given above, and taking all of the evidence into consideration, I find that the appellant has not shown, on a balance of probabilities, that the impoundment will result in exceptional hardship as defined under the Act and Regulation.
ORDER
31Pursuant to s. 50.2 (5) of the Act, the impoundment is confirmed.
Licence Appeal Tribunal
Jennifer Friedland,
Member
Released: May 29, 2020