Date: 2020-07-15

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:

Cassandra Charteris

Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

Panel: Jennifer Friedland, Member

Appearances:

For the Appellant: Self Represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By teleconference, June 26, 2020

REASONS FOR RELEASE OF VEHICLE

Overview

1Following a hearing by teleconference on June 26, 2020, I ordered the release of the appellant’s vehicle on the grounds that the impoundment would result in exceptional hardship. I indicated that my reasons would follow in writing. These are my reasons.

BACKGROUND

2The appellant’s 2007 Mazda, licence plate # CHLF244 (the “vehicle”) was detained and impounded on May 21, 2020 for 45 days under s. 55.1 of the Highway Traffic Act¹ (the Act). This section allows a police officer to detain and then impound a vehicle if it is being driven by a person whose driver’s licence is suspended for a Criminal Code²-related reason. In this case, the vehicle had been taken by the appellant’s roommate whose driver’s licence had been suspended following an “Over .80” conviction in 2019.

3The appellant appealed pursuant to 50.2(3) (d) of the Act on the ground that that the impoundment would result in exceptional hardship.

The Test for Exceptional Hardship

4The test for exceptional hardship is set out in Ontario Regulation 631/98 (“the Regulation”) which is a Regulation made under the Highway Traffic Act.

5In determining exceptional hardship, the Tribunal must first look to whether the appellant has an alternative to the impounded vehicle available. Section 10 (4) of the Regulation explains what this means:

(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.

6If there is no alternative to the impounded vehicle, the Tribunal must then consider whether not having the impounded vehicle will result in a threat to health and safety as set out in s. 10 (1) of the Regulation, namely:

(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.

7Sections 10 (2) and 10 (3) of the Regulation then together establish other factors that may or may not be considered by the Tribunal in certain circumstances.

8Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) which is, “inconvenience to any person.”

9With 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 factors, if, as set out in s. 10(3) (a), and discussed above, there is no alternative to the impounded vehicle available, and that:

(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).

EVIDENCE & ANALYSIS

10The appellant lives in the town of Parkhill, Ontario. She has a job in a restaurant in Port Franks, Ontario which is approximately 20 km away. Her work has just resumed following the lifting of COVID-19 restrictions for outdoor dining. She relies on her car for transportation to and from work.

11The appellant has two children, ages 5 and 8, and also relies on her car to drop the children off to a care provider while she is at work. Her child care provider is in the same town as her work.

12The appellant had a number of shifts scheduled during the period of the impoundment. I accept her evidence that she was at risk of losing her job if she could not make it in for the pending shifts. She had looked for alternative employment in her area but jobs were scarce due to the Covid-19 pandemic. I am satisfied that to lose her job would have an immediate, significant and lasting impact on the appellant.

13The main question for me, therefore, was whether she had an alternative means to get herself and her children to Port Franks so that she could maintain her employment during the period of the impoundment. I am satisfied that she did not.

14The appellant testified about the availability of alternative transportation. I accept her evidence that Parkhill is a small town, that there are no buses available, and that cabs, which were few and far between at the best of times, had not been operating due to the Covid-19 situation. I further accept that it would be cost-prohibitive for the appellant to taxi to and from work in any event.

15The appellant was able to get a lift from a manager at her work for the shift that was going to take place on the day of the hearing, however, she was told this would be a one-time only exception. To do this, she also needed to arrange for her children’s father to pick up the children from her at her work and care for them until the end of her shift when he would then drop the appellant and the children back at her house. The appellant was questioned as to why her children’s father could not provide child care and a lift both ways for her future shifts, however, the appellant explained that her ex- would not commit to any future assistance and had a history of being unreliable. I have no basis to find that this was not the case. I accept the appellant’s evidence that she could not count on her ex other than for that one afternoon of child care and that one one-way lift back to Parkhill after her shift on the day of the hearing.

16The appellant described that she had a friend who lived nearby, worked at the same bar and might have been able to give her a lift to work; however, when the appellant called her friend to pursue this option she learned that the friend was currently living in another town taking care of her newborn grandchild.

17With respect to her parents’ availability to help with transportation, the appellant explained that they lived over an hour away, that her mother worked long hours and her father was on call.

18The appellant explained that her only alternative for getting to and from work would be to walk. She said she had done so once in the past but that it took her 4 hours each way and was not in the heat of summer. She stated that while she would consider trying to walk to work again while her car was impounded, she could not do so and still get to her shift on time. Furthermore, this option would leave her stranded in terms of child-care.

19Given the above facts, I was satisfied on a balance of probabilities following the hearing that the appellant did not have an alternative to her impounded vehicle as set out in s. 10 (4) of the Regulation and that she would suffer exceptional hardship if her vehicle were not released from the impoundment in order to get to and from work. I am satisfied that the appellant considered and enquired into every “reasonable” option that would adequately mitigate or eliminate the loss she would suffer by not having her car and that the impact of losing her employment would be immediate, significant, and lasting. I accept the appellant’s evidence that there was no alternative employment in her area and that the appellant’s future economic security depended on her maintaining her job.

Conclusion

20For the above reasons, I ordered the release of the appellant’s vehicle following the hearing on June 26, 2020 on the grounds of exceptional hardship. This order was made pursuant to section 50.2(5) of the Act. A further order is not necessary.

Licence Appeal Tribunal

Jennifer Friedland, Member

Footnotes

1. 1R.S.O. 1990, c. H.8.
2. 2RSC 1985, c C-46.