Date: 2020-10-19

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:

Maria Harding

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Maria Harding, Appellant

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing:

By teleconference, October 15, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Maria Harding 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 September 11, 2020 and a hearing was held on October 15, 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 grant the appeal and order the release of the vehicle.

B. ISSUES:

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

C. LAW:

5Under 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.

6The impound period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 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)(d) which states that the Tribunal may order the Registrar to release the motor vehicle where the impoundment will result in exceptional hardship.

8Section 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.

9Section 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.

10If 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.

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.

12The 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.

13Following 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.

D. ANALYSIS:

Background

14I would like to start by stating that the appellant is a credible witness who gave her evidence in a straight-forward manner.

15The appellant’s vehicle was impounded when her son, S, took it to the store without her knowledge. The police pulled over her vehicle and had it impounded as S was driving while disqualified. The appellant tried to plead with the police to let take her vehicle home without avail.

16The appellant also has another son, B, who is 24 years old and has been diagnosed with autism. The appellant testifies that she needs the vehicle to transport her son B to various programs to help him develop social skills with a hope of one day becoming employed.

17The appellant and her two sons moved to Ontario from New Brunswick a few years ago after their house was burned down. After moving here, the appellant was diagnosed with PTSD, and has been receiving treatment to help her deal with depression and anxiety. It took the appellant a year and a half to develop the mental strength to leave her home and to go to public places with a large crowd. The appellant was still attending counselling before the pandemic began.

18The appellant does not have any family members in Ontario and only has a few friends. Due to COVID-19, the appellant has only been able to visit one of her friends.

19The impounded vehicle belongs to the appellant’s son, S. On August 18, 2020, S added the appellant onto the vehicle’s registration because S is not able to drive the vehicle while his licence is under suspension.

20On paper, the appellant also owns another vehicle, a Chevrolet Cobalt. However, the appellant testifies at the hearing that the transmission “is gone” and other parts of the Cobalt need repair. It would cost more for her to fix the Cobalt than what the vehicle is worth. The Cobalt is now sitting in a garage in another city.

21Both the appellant and her son, B, are on social assistance. The appellant’s son S is currently unemployed.

Is there No Alternative to the Impounded Vehicle

22The first question I need to consider is whether there is no alternative to the impounded vehicle. For the reasons set out below, I find there are no alternatives to the impounded vehicle.

23The appellant last used her Cobalt in January 2020. Prior to the COVID-19 outbreak and the provincial lockdown - and before her son S added her to the registration of the impounded vehicle - the appellant was using the public transit to run errands with her son B. Since the lock down, the appellant has only used public transit for essential trips including grocery shopping and picking up her own medication. She no longer takes B with her on these trips because B refuses to wear a mask, and she is unable to force him to do so. B will have a “meltdown” every time he wears a mask. B, who weighs 200 pounds, is too big for the appellant to control.

24If the appellant needs help to get something that she is not able to carry herself, her son S will find a way to help.

25The appellant was planning to sign up B for a community program to help him develop social skills. While funding for the program was approved sometime ago, until recently the appellant has not been able to find a program that is suitable for her son. The program funding only covers transportation cost above public transit fare if the participant needs to be accompanied by a support worker, which does not apply in the case of B. Due to COVID-19, some of the programs have been suspended including the one that B would be enrolled in.

26Between August 18 and September 11, 2020, the appellant was using the impounded vehicle. Since August, the appellant has been paying for the vehicle’s auto insurance coverage. She has also registered the vehicle for a parking slot at the social housing building where she and B are living. By the time the vehicle was impounded, the community center where the programs are being run has re-opened, but the program that B is enrolled in has not restarted. Once the vehicle was impounded, the appellant was no longer able to take B to any program because of his refusal to wear mask, even if the program has restarted.

27During the lock down, B was not able to go anywhere. When the lock down was lifted, B has been going out again with the appellant, which was an important part of B’s socialization. However, since the impoundment, B is once again locked inside the appellant’s home and cannot get anywhere. As a result of the isolation, B has become very depressed.

28The Registrar submits that there are alternatives to the impounded vehicle because the appellant is able to use public transit for grocery shopping and other needs. The Registrar also submits that B is not able to attend the program because of the lock down, and not because of the impoundment.

29While it is true that the appellant has alternative for her own errands, including grocery shopping and picking up medication, the appellant does not have any alternative to transport her son B in. The only other alternative, the public transit, is not a reasonable option in the case of B, because of his refusal to wear a mask. As the appellant has explained, getting B to understand there is a pandemic and that he must look after his personal hygiene (e.g. handwashing) is a challenge in and of itself. On top of that, B’s refusal to wear a mask means he cannot take the public transit – both for the safety of himself and for public safety.

30It does not matter when the program that B enrols in begin. What matters is that after the appellant was added to the registration of the vehicle, and before the impoundment, the appellant was transporting B in that vehicle, without which, the appellant cannot take B out with her. The appellant takes B with her when she goes out as part of her ongoing efforts, as a mother of an adult autistic son, to help her son gain social skills and reduce social isolation. The pandemic certainly has made a dent on that laudable efforts, but it was not the only reason why these outings have stopped. Indeed, because of the pandemic, having a vehicle has become that much more important to the appellant and her son B. The impoundment thus took away the only tool that the appellant has in her disposal to engage B in the broader social network.

31Based on the above, I find that the appellant has demonstrated 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. For reasons beyond her control, there is no alternative available for the appellant to transport her son B due to the impoundment.

Is there threat to the health or safety of any person ordinarily transported by the motor vehicle?

32Having found there is no alternative to the impounded vehicle, I now must consider whether there is any exceptional hardship. Specifically, I must determine whether there is any threat to the health and safety of any person ordinarily transported by the motor vehicle, and the answer is yes.

33There are two people who are ordinarily transported by the motor vehicle, namely, the appellant and her son B.

34I have already described the impact of the impoundment on B. Because he cannot go out and use the public transit safely, B has been locked up inside the home without any opportunities for socialization. B has become depressed.

35But more importantly, I find there is serious threat to the health of the appellant resulting from the impoundment. As noted above, B was diagnosed with PTSD after her relocation to Ontario. She has undergone EMDR – Eye Movement Desensitization Reprocessing treatment - for people who suffer from PTSD. Her condition improved so significantly that she was able to go from locking herself up in her home to going to a shopping mall. The appellant was getting better and attending therapy sessions. She was also involved in a support group after the EMDR program. She was becoming more comfortable being around people.

36Because of COVID-19 as well as the impoundment, the appellant is no longer socializing. Stuck in the house with an autistic son has made her become more depressed. Losing the vehicle makes her feel that she is falling apart. In the word of her counsellor, the appellant’s condition is “reversing”.

37Once again, the Registrar submits that the challenges facing the appellant and her son are not caused by the impoundment. These difficulties started in March when the appellant did not have the impounded vehicle then. Once again, I disagree.

38The Registrar’s submission fails to take into account the fact that the vehicle is an integral part of the appellant’s strategy to keep herself and her son B becoming engaged in socializing with the outside world. Without the vehicle, the appellant cannot take her son out during the pandemic to give B and herself, a respite from the lock down. Without the vehicle, the appellant must keep B locked inside their home, which causes B to become depressed and which triggered a reversion of the appellant’s PTSD condition.

39Given the serious psychological harm that has been brought about to the appellant and her son B, I find that the impoundment has resulted in a threat to the health and safety of both the appellant and her son, both of whom are ordinarily transported by the motor vehicle.

40Based on the above, I find the appellant has established there is exceptional hardship resulting from the impoundment.

ORDER:

41For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal sets aside the impoundment and orders the Registrar to release the appellant’s motor vehicle.