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

Date: 2020-07-10

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:

Shabana Narayan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Avvy Go, Member

APPEARANCES:

For the Appellant: Shabana Narayan, Appellant

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: July 6, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Shabana Narayan, appeals the 45 days impoundment of her motor vehicle on the grounds that the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on May 31, 2020 and a hearing was held on July 6, 2020, by teleconference, to consider the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

3For the reasons set out below, I confirm the impoundment.

B. ISSUES:

4The issue under the appeal is whether the impoundment will result in exceptional hardship.

C. EVIDENCE:

5The appellant is a single mother who lives alone with her one-year-old son.

6On the day of impoundment, the appellant was with the father of her child (“ex-partner”). They are no longer in a relationship, but they decided to go to the lake as a family on that day to work things out. The appellant was not feeling well and she was experiencing some chest pain. The appellant’s ex-partner offered to drive; the appellant agreed to let him do so without knowing that his licence has been under suspension and is subject to restriction. Their vehicle was stopped by the police for speeding.

7Without the use of a vehicle, the appellant has to reschedule her son’s appointment for his first year check up and vaccination. The appellant does not feel safe taking her son on the public transit due to the COVID-19 pandemic, and cannot afford to travel by taxi as her son’s doctor practices in another city.

8The appellant’s brother, who used to help her get grocery is out of town. The appellant’s neighbours are elderly and are not in a position to help with grocery shopping, other than getting milk for her son on occasions.

9The appellant, who is a nurse, is not working right now as she has extended her maternity leave due to COVID-19. She still has to pay for a car loan and insurance. The impoundment presents additional financial challenge to the appellant.

10Upon questioning from the Registrar, the appellant confirms that she lives in a house owned by her mother, who does not live with her. While her mother has a vehicle, she needs her vehicle for work and may not always be able to lend it to the appellant. The appellant has not discussed suspending rent payment with her mother, and has not explored the use of online grocery shopping and delivery service. The appellant confirms that there is emergency service available in her community if she needs it.

11The Registrar provided information about the ex-partner’s driving record showing that his licence was suspended previously due to impaired driving. While the suspension has expired, he is still subject to a mandatory ignition interlock requirement. The appellant was unaware of this requirement when she agreed to let her ex-partner drive her vehicle.

D. LAW:

12Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

13Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of s. 50.2(3)(c) or (d) which states that the Tribunal may order the Registrar to release the motor vehicle where

(c) 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 subject to the condition described in paragraph 2 of subsection 55.1 (1); or

(d) that the impoundment will result in exceptional hardship.

14Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.

15Section 10 (4) 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.

16If the Tribunal finds that the appellant has no alternative to the impounded vehicle, s.10(1) then it shall 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.

17Sections 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.

18The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

19Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

20I find the appellant has not established that the impoundment will result in exceptional hardship.

21The legislation is very specific. It provides the Tribunal with specific criteria on how to determine exceptional hardship. Based on the evidence, I find that there are alternatives available to the appellant including the public transit, taxi and uber. There are various online platforms that provide grocery delivery service. While not always available, the appellant may also call on her mother for help. In addition, there is emergency service available in the community.

22Further, while the appellant says she has experienced chest pain, she has scheduled an appointment with her doctor after the impoundment release date. The appellant’s son does not, thankfully, have any medical issues. Thus, even if there were no alternative to the impounded vehicle, the appellant has not demonstrated that there is a threat to the health or safety of any person ordinarily transported by the motor vehicle.

23While I appreciate that the outcome may seem unfair to the appellant since the impoundment was caused by the action of her ex-partner, I am bound by the law and the statute that governs impoundment matters.

24Based on the above, I therefore find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

25For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant’s motor vehicle.