Tribunal File Number: 12601/MVIA
An Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to s. 55.1 of the Act.
Between:
Judy Croft
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Adjudicator: Zahra Dhanani
Appearances:
For the Appellant: Self Represented
For the Respondent: Stella Vellocci, Agent
Place and Date of Hearing: Teleconference Hearing March 6, 2020
REASONS FOR DECISION
OVERVIEW
1The appellant’s vehicle was impounded on January 27, 2020 while it was being operated by Rodney Hangard (RH) whose driver’s licence was under suspension.
2The appellant had loaned her car to her friend (LM) who in turn lent it to her boyfriend RH without the appellant’s knowledge or consent.
3The appellant makes this appeal on the grounds that she will experience exceptional hardship.
ISSUES
4Has the appellant satisfied the Tribunal that she will experience exceptional hardship as a result of the impoundment?
CONCLUSION
5I find that the impoundment has resulted in exceptional hardship for the appellant.
LAW
6Under the Highway Traffic Act (Act), a police officer is required to impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose driver’s licence has been suspended.
7The only grounds for appeal under which the Tribunal may order the Registrar to release an impounded motor vehicle are set out in s. 50.2(3) of the Act:
(a) That the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) That the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) That the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
(d) That the impoundment will result in exceptional hardship.
8In this case the appellant is relying on the “exceptional hardship” ground.
9Section 10 of O. Reg.631/98 under the Act (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship has resulted from an impoundment. The burden of proving such hardship rests on the appellant.
10Pursuant to subsection 10(1), the first part of the test for exceptional hardship requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available.”
11Subsection 10(4) states that in order to show that there was 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.”
12If 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
13Sections 10 (2) and 10 (3) together establish other factors that may be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal only consider the fact that the impoundment has caused the appellant to suffer financial or economic loss to any person or loss of employment or employment opportunity to any person if all of the criteria listed in s.10(3) of the Regulation are met:
(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 as a result of a loss by the suspended driver of the type set out in s.10(2)(b), (c) or (d).
EVIDENCE AND SUBMISSIONS
14The appellant stated that she lent her car to her friend LM because she is too nice a person and it was clearly a bad mistake on her part. The appellant stated that she really cared for LM who was in a financially precarious situation.
15She stated that she was completely unaware that RH was driving the car as she had only loaned it to LM and told her friend that no one else could drive the car. After the vehicle was impounded, LM’s friend told her that she had loaned the vehicle to RH for a very short period of time.
16The appellant acknowledges that she has another vehicle but she testified that it is currently not working and she cannot afford to fix it.
17The appellant stated that she needs a functioning car as she is self-employed as a cleaner and uses the car to get herself and her equipment to various jobs. She testified that she drives at least two hours per day. She stated that she cannot work without the car as she lives in a remote area without readily available public transport. She has already lost pay from 6 house cleaning shifts because her car has not been working since the impoundment.
18The respondent submitted that the appellant could pay to get her non-impounded car fixed or rent a vehicle. The appellant submitted that she could not afford much outside of her basic costs right now. After taxes she makes under $20,000.00 annually. The appellant stated she had not found out how much it would cost to fix the car she has because it is in such bad shape that it needs to be dumped and it is not worth fixing.
ANALYSIS
19I find that that the appellant has satisfied all of the criteria contained in section 10 of O. Reg.631/98 and has thus established that exceptional hardship has resulted from the impoundment of her vehicle on January 27, 2020.
20The test imposed by the law is clear and strict. The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle that could have mitigated any loss suffered by its impoundment.
21I accept the appellant’s evidence that she needs a functioning car to earn a living as a self-employed cleaner and that there are no reasonable alternatives available to her.
22The appellant lives in a remote area and does not have access to public transit.
23I find that expecting the appellant to rent a vehicle for an extended period of time, ignores the reality that is not a viable alternative option given her low income.
24I also find that it is not reasonable to put money into fixing a car that is not functioning and ready to be scrapped, even if it were within the appellant’s limited means to pay for the repair. Therefore, I find that the appellant did not have another alternative to the impounded car.
25While subsection 10(4) states that in order to show that there was no alternative to the impounded vehicle the owner must show that “every reasonable” option has been considered, I find that this must be interpreted to mean what is reasonable for the appellant given her particular circumstances. Given that the cost of repairs and rental vehicles are beyond her means and public transportation is not available, I find there is no reasonable option available to her.
26I find that not being able to continue for the 45-day impoundment period is the cause of an immediate, significant or lasting loss for the appellant, without an income a person will have a very difficult time to afford the basic necessities of life this could have a lasting and significant impact and be a threat to a persons health and safety.
27For these reasons, I find that the appellant has established that the impoundment resulted in exceptional hardship.
DECISION
28Pursuant to subsection 50.2 (5) of the Act, the appeal is allowed.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: May 25, 2020