Licence Appeal Tribunal
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:
Karen Scheuermann Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Karen Scheuermann, Self Represented For the Respondent: Stella Velocci, Agent
Heard by Teleconference: July 2, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on July 2, 2020 to consider an appeal filed by Karen Scheuermann (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 his motor vehicle.
2The appellant's motor vehicle was impounded on May 24, 2020 on the basis that at the time of impoundment the operator was driving with a suspended licence (the "suspended driver"). A Notice of Impoundment was issued for a period of 90 days.
3For the reasons set out below, the appeal is dismissed and the impoundment is confirmed. However, the impoundment period is reduced to 45 days.
ISSUES:
4The issues to be determined is whether the appellant's vehicle had been stolen by the suspended driver and if the impoundment will result in exceptional hardship.
THE LAW
5Section 50.2(3) of the Act sets out the grounds on which the Tribunal may order the Registrar to release an impounded motor vehicle: In this appeal we are only concerned with subsections (a) and (d):
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(d) that the impoundment will result in exceptional hardship.
ANALYSIS – WAS THE VEHICLE STOLEN?
6The appellant and her spouse have two residential properties, one in the city and one in the country. The appellant's son, who is a single parent, and has two children reside in the country home. As the son does not have a motor vehicle the appellant allowed him to use hers, a 2008 Pontiac.
7On the date of the impoundment the son's girlfriend was at the country home watching the children while the appellant was helping his uncle at the uncle's business. As the uncle picked up the son, the Pontiac remained at the country home.
8In the son's absence, the son's girlfriend took the children for a drive in the Pontiac. Upon returning to the country home with the children, the police, who were in the area regarding another matter, spoke to the girlfriend and determined that she had driven the vehicle while her licence was under suspension.
9The appellant testified that neither she nor her son gave the appellant permission to drive the vehicle. She also testified that her son had hidden the keys in a drawer prior to leaving the home.
10As neither the appellant's son or the son's girlfriend testified the details as to how she came across the car keys are not known.
11In any event, it was the appellant position that the girlfriend's actions bring this situation within the ambit of s. 50.2(3)(a), that being that she had stolen the vehicle.
12The use of the word "stolen" in s. 50.2(3)(a) requires that the person who took the vehicle did so with the intent to deprive the owner of it, either temporarily or permanently. I do not accept that the suspended driver stole the vehicle as she did not intend to deprive the appellant's son of it. She took it only to take the children for a drive. The appellant's son was at his uncle's during this entire period and was not deprived of it. It is not sufficient that the suspended driver took the vehicle without permission as this is not the standard established by the legislature. Had the legislature intended to require only that the vehicle be taken without the permission of the owner, it would not have used the word "stolen".
13Thus, based on the facts before me I find that the vehicle was not "stolen" when it was taken by the suspended driver.
14Therefore, this ground of appeal is dismissed.
ANALYSIS – EXCEPTIONAL HARDSHIP
15I now turn to the appellant's claim pursuant to subparagraph (d), that the impoundment will result in exceptional hardship.
16According to the appellant, at the time of impoundment she had left the car with her son for his use. Thus, for the purpose of this appeal, he and his children were ordinarily transported by the vehicle.
17The appellant testified that her son's children have special needs and require speech therapy. As a result of the impoundment the appellant's son has not been able to take the children to their speech therapy sessions. Also, in regard to the children, the appellant's son has not been able to take them to their mother's home. Further, the appellant testified that without the use of the impounded vehicle, her son has not been able to travel to London, Ontario to write an exam to be licenced as a crane operator. In addition, she testified that her son is not able to pick up groceries without the use of the impounded vehicle.
18On the facts of this appeal, pursuant to Ontario Regulation 631/98, sections 10 (1) and (4), the appellant must demonstrate that no alternative to the impounded vehicle is available and every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to her son or his children, including making arrangements to do without any motor vehicle during the impoundment period.
19If the appellant satisfies this requirement, she must demonstrate, in the case of the children, that the loss of use of the impounded vehicle will result in a threat to their health and safety In the case of her son she must establish that the impoundment will result in a financial or economic loss, or loss of employment or an employment opportunity and that these consequences will be "immediate, significant and lasting"1.
20On the evidence presented, the appellant has not met any of these requirements. This stems in large part from her lack of sufficient knowledge of her son's situation and the fact that he did not testify.
21The appellant testified that her son has not been able to travel to London to write the crane operator's licencing test. The appellant's spouse travels to London daily for work. She offered no explanation as to why her spouse could not take her son to London to write the test.
22When asked if her son can rent a vehicle to drive to London, the appellant responded that he cannot afford to rent a car. However, she was not able to say whether he has been earning any income of late. I am not satisfied that the appellant has sufficient information to testify in regard to her son's financial situation and thus whether he can afford to rent a vehicle for one day to write a test in his chosen field of work.
23The appellant must also establish that the impoundment of the vehicle will result in a financial or economic loss, or loss of employment or an employment opportunity Not being able to write the test for his crane operator's licence in the absence of evidence as to whether the appellant has a job lined up or if he has lost a job opportunity because of the impoundment does not meet the requirements of the regulation to establish a financial or economic loss, or loss of employment or an employment opportunity.
24As for the children's speech therapy sessions, the appellant testified that these had been taking place at school. When the schools were shut down due to Covid-19, the speech therapy sessions were cancelled. Thus, it would appear that to date that the impoundment has not prevented the children from attending their therapy sessions. She also testified that her son has spoken to a speech therapy clinic and that it will be opening soon. However, she did not know when the clinic will be opening. Thus, it is not known if the children will miss any therapy sessions as a result of the impoundment.
25Further, there is not sufficient evidence to establish the impact on the children if they miss some speech therapy sessions during the impoundment period. Thus, it has not been established that the impoundment will result in a threat to the health and safety of the children.
26In any event, the clinic is in the municipality in which the appellant resides. It would appear that consideration was not given to having the appellant's son and his children stay with the appellant in town so the children can attend their therapy sessions. Thus, it is my determination that the appellant and her son have not considered "every reasonable option" in regard to an alternative to the impounded vehicle as it affects the children.
27The same applies to the appellant's statement that her son's children have not been able to visit their mother because the son has no way to drive them there. There was no evidence presented as to what alternate options have been considered.
28As for groceries, the appellant testified that since the impoundment she has helped her son out on weekends. She stated that as there is not a grocery store near the country home, her son cannot pick up any groceries during the week. At most, this is an inconvenience and does not meet the test of exceptional hardship.
29Therefore, it is my determination that the appellant has not established that the impoundment has or will result in exceptional hardship.
ORDER
30For these reasons the appeal is dismissed and the impoundment is confirmed, except for the period of impoundment.
31The impoundment period is reduced from 90 days to 45 days. The appellant had another vehicle impounded on May 21, 2020. In Tribunal file 12782/MVIA which appeal was heard at the same time as this appeal, I determined that the other vehicle that had been impounded had been stolen and I ordered it to be released. Thus, the impoundment of the Pontiac was the appellant's first impoundment which is subject to a 45 day period of impoundment. Therefore, as the 45 days have elapsed, the Registrar is ordered to release the appellant's 2008 Pontiac.
LICENCE APPEAL TRIBUNAL
_______________________
Theodore Crljenica, Vice-Chair
Released: July 10, 2020
Footnotes
- Pursuant to section 10(3)(b) of Ontario Regulation 631/98.