Hilary Fortier v. Registrar of Motor Vehicles, 2020 CanLII 94725

Date: 2020-11-02

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1 of the Act.

Between:

Hilary Fortier

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Decision and Order

ADJUDICATOR: Luisa Ritacca, Member

APPEARANCES:

For the Appellant Self represented

For the Respondent Sanjay Kapur, Agent

A. Overview

1On September 30, 2020, a teleconference hearing was held to consider the appellant’s appeal of a 45-day impoundment of her 2014 Hyundai (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”).

2The vehicle was impounded on August 24, 2020. At the time of the impoundment, the appellant’s vehicle was being driven by Matthew Jewell, an old high school friend and new boyfriend. Unbeknownst to the appellant, Mr. Jewell’s license was suspended and had been since December 2005.

3The appellant appeals on the basis that the impoundment has and will continue to result in exceptional hardship.

4The 45-day impoundment is scheduled to expire on October 8, 2020. The appellant indicated that she needs access to her vehicle before that date to assist her parents and to be able to attend work meetings. Further, she indicated that she is unable to pay the cost to release her vehicle, which is estimated to be $2800.00.

5Having carefully reviewed the evidence provided during the hearing, I find the appellant has not satisfied me that the impoundment has and will continue to cause exceptional hardship. As such, I confirm the impoundment of the appellant’s vehicle.

B. Issues

6The issue to be determined on this appeal is whether the impoundment will result in exceptional hardship for the appellant.

C. Facts

7The facts of the impoundment are not in dispute. The appellant testified that on August 24, 2020, she allowed her new boyfriend, Mr. Jewell to drive her vehicle. They were driving to work early in the morning. The appellant testified that it was not an ordinary occurrence for her to allow Mr. Jewell to drive her car, but at the time she had no concerns about whether he had a valid driver’s license. She explained that she has known Mr. Jewell since high school and that she is close with his family. She has always known Mr. Jewell as a driver and had no reason to believe that he did not hold a valid driver’s licence. The appellant did not ask Mr. Jewell whether he had a licence or to see his driver’s license the morning of August 24^th.

8The appellant and Mr. Jewell were stopped by the police, at which time the appellant learned of Mr. Jewell’s suspended licence and that her vehicle would be impounded. While she was originally told that the vehicle would be impounded for 7-days, the police later contacted her to advise that in fact the vehicle would be impounded for 45-days.

9The driver record history filed by the respondent confirmed that Mr. Jewell has not had a valid driver’s licence since 2005 and that in addition the record provides that upon reinstatement of his licence he is required to only operate vehicles with an ignition interlock. It appears that Mr. Jewell’s driving history includes a number of alcohol related offences.

10The appellant conceded that she was not aware of Mr. Jewell’s driver’s record or previous convictions.

11The appellant provided compelling evidence with regard to her present circumstances. In March 2020, she moved back to her parents’ home following a separation from her husband. She explained that the separation and ongoing marital proceedings have left her in a difficult financial position. She is carrying all of the debt from her marriage and has been advised that she may need to file for bankruptcy pending the outcome of the marital proceedings. The appellant stated that she is in no position to pay the impound costs at the expiry of the 45-day period. She indicated that she will lose the car and will not be able to purchase another one.

12Further, the appellant explained that she is the primary caregiver for her parents, both of whom are living with health issues. She stated that her father is a transplant recipient, which makes him particularly vulnerable to infection and illness. Given the very real concerns regarding Covid-19, her parents rely on the appellant to buy groceries, run errands and assist with medical appointments. She even attends to her grandmother who lives 3 hours away to provide her with frozen meals from time to time.

13The appellant explained that without access to her own vehicle, she has had to share her parents’ car, which she does not like to do on a regular basis, because her parents need their car close at hand in the event of a medical emergency. She testified that since the impoundment she has been using her parents’ car “sparingly”.

14The appellant acknowledged that at present she does not need her vehicle for her primary employment (with a design firm) because she is working from home due to Covid-19. She said that she will need a car eventually as she is in normal circumstances required to travel and meet with clients as part of her employment.

15Further, the appellant indicated that she has a side job working as a Mary Kay dealer, but that she has not been active with it for a number of months. She explained that she does not intend to reactivate this work until she has a car, since she is required to make deliveries to her customers as part of the job.

16The appellant acknowledged that public transit is available where she currently resides, but that given her parents’ health issues, she avoids using public transit so not to expose them to possible infection or illness. Similarly, she said she avoids taxis or car shares to avoid the same risk of exposure, and also because she cannot afford to do so.

17Under questioning by the Tribunal and the respondent’s agent, the appellant confirmed that she has a sister who lives and works in the same city and is about a 10-minute drive from her parents’ home. She confirmed that her sister has a car and that her sister’s partner also has a car, but that he can only use the car for work purposes. The appellant explained that her sister is not in a position to assist with their parents’ care, as she has three young children and a busy career, as a professor.

18Finally, the appellant confirmed that Mr. Jewell is not in a position to help her pay for the impound costs. She said that he did not have the $2800.00 available.

D. Law and Analysis

19The owner of a vehicle impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment based on one of four grounds set out in s. 50.2 (3) of the Act. In the present case, the appellant relies on the ground as set out in subsection (3)(d), namely that the impoundment has resulted and will continue to result in exceptional hardship for her.

20The onus is on the appellant to demonstrate that the impoundment will cause exceptional hardship.

21The specific test for establishing exceptional hardship is set out in Ontario Regulation 631/98 under the Act. Section 10(4) of the Regulation provides as follows:

(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.

22If the appellant is able to show that she has no alternative available, section 10(1) of the Regulation provides that the Tribunal is 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.

23Sections 10(2) and (3) of the Regulation set out the factors the Tribunal can and cannot consider in determining whether the impoundment will result in exceptional hardship. Generally, the Tribunal cannot consider the financial hardship suffered by the appellant as a result of the impoundment unless the Tribunal is first satisfied that the appellant has no reasonable alternative to the vehicle available and that the financial hardship would be immediate, significant and long lasting.

24Following the hearing the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.

No Reasonable Alternative Available

25In order to satisfy the Tribunal that she will experience exceptional hardship if the impoundment order is upheld, the appellant must first demonstrate that she has no reasonable alternative to the vehicle and in doing so show that she has considered every reasonable option.

26In this case, there is no doubt that the impoundment of the vehicle has resulted in significant inconvenience for the appellant. She plays a critical role in carrying for her parents and her elderly grandmother. The appellant uses her car to run errands, take her parents to medical appointments and deliver meals to her grandmother. While she is presently working from home, she does usually need the vehicle to attend client meetings. She explained that given her parents’ health issues, she is very careful about where she goes and how often she goes out so to avoid the risk of bringing infection or illness into her home. This is why she argued that public transit was not a feasible alternative to having access to her own car. Further, while she has been using her parents’ car during the impoundment period, she explained that this was a less than ideal arrangement since her parents needed access to their car at all times in case of a medical emergency.

27While I appreciate that the impoundment of her vehicle has been distressing, I am not satisfied that there are no reasonable alternatives available to the appellant at this time. Although not ideal, the appellant appears to have free access to her parents’ vehicle. She has been able to use the vehicle to attend to her parents’ needs over the last month. In case of an emergency, the appellant did acknowledge that she was usually only about 20 or 30 minutes away from home at any given time.

28In addition, the Tribunal heard evidence that the appellant’s sister lives in the same city and also has a vehicle available. Presumably, in the event of a medical emergency with her parents, the appellant’s sister could be available to assist. In addition, while the appellant testified that her sister is very busy with her own life, it was not clear why her sister could not (even on an occasional basis) help with errands and medical appointments for their parents.

29Finally, while the Tribunal appreciates that the appellant is reluctant to rely on public transit given her parents (and particularly her father’s) health conditions, I am satisfied that there are other safe and reasonable alternatives available, namely her parents’ car.

Threat to Health and Safety of a Person Ordinarily Transported by Vehicle

30Even if I was satisfied that the appellant has no reasonable alternatives available to her, I am not satisfied that she has established that the impoundment would result in a threat to the health or safety of any person ordinarily transported by the vehicle, such that I should consider the other factors set out in section 10 of the Regulation, including “financial loss”.

31The appellant provided moving evidence with respect to her parents’ health, but she did not establish that either of them were ordinarily transported by her vehicle or that they had no alternative vehicle available to them. In fact, as discussed above her parents have a vehicle, which the appellant is currently able to access.

Financial Loss

32Finally, even if the appellant could have satisfied the Tribunal that her parents’ or some other person’s health or safety was at risk as a result of the impoundment, the appellant has not established that the financial loss suffered by the appellant as a result of the impoundment is immediate, significant and lasting. As I understand the appellant’s primary argument is that the financial hardship is primarily related to the fact that she does not have sufficient funds to pay for the release of the car once the impoundment period is complete.

33Again, while I appreciate the difficult personal and financial circumstances of the appellant, the circumstances simply do not meet the requirements of the legislation. The fact that she is in difficult financial circumstances is not as a result of the impoundment.

34First, the appellant has not suffered any job loss as a result of the impoundment. She indicated that she has been unable to restart her Mary Kay business, but admitted that she has not focussed on that business for several months and that she generated less than $250.00 from that business in the months preceding the impoundment.

35Second, the appellant indicated that she did not intend to seek repayment of the impoundment costs from Mr. Jewell, even though such recourse is available to her and specifically provided for in the Act.

36Finally, as the respondent argued, the costs of the impoundment are not generally a factor the Tribunal may consider in determining exceptional hardship. The costs are owed at the end of the impoundment period, making it difficult to reconcile that such costs would cause hardship during the impoundment period itself.

37In summary, the Tribunal finds that the appellant has not demonstrated that she has no reasonable alternatives available to her and as such has not overcome the first step in the test for determining exceptional hardship. Even if no reasonable alternatives are available to the appellant, she has failed to demonstrate that the impoundment has or will result in a threat to the health or safety of a person ordinarily transported by the vehicle, such that the Tribunal ought to consider her financial loss.

38I am sympathetic to the appellant’s situation; however her circumstances simply do not meet the requirements set out in the Regulation for the granting of her appeal.

E. Order

39For the reasons set out above, pursuant to s 50.2 (5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.