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 for driving while under suspension.
Between:
Paula Rodriguez Campo
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, agent
Heard by teleconference:
October 5, 2021
Overview
1On September 6, 2021, the appellant’s vehicle was impounded for 45 days, pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section requires a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ends on October 21, 2021.
2The appellant appeals the impoundment on the ground that it caused exceptional hardship. For reasons outlined below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
Issue
3The issue to be determined is whether the impoundment resulted in exceptional hardship.
The Law
4Section 50.2 of the HTA lists a few limited grounds on which an owner of a motor vehicle that is impounded may appeal, one of which is exceptional hardship. The onus is on the appellant to establish, on the balance of probabilities, the ground of exceptional hardship.
5Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.
6Pursuant to section 10(1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
7Section 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.
8If this initial step of the test for exceptional hardship is met, I then must consider whether on a balance of probabilities, 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.
9Additionally, the Regulation stipulates that unless the appellant demonstrates there was no alternative to the impounded vehicle, the Tribunal is prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship.
Evidence and Analysis
10The respondent presented documentary evidence which established that:
a) the appellant is the registered owner of the impounded vehicle;
b) on September 6, 2021, the vehicle was stopped while being driven by Arnold Liendo Mendoza, a person whose driver’s licence was suspended as a result of a Criminal Code conviction;
c) the vehicle was impounded pursuant to s. 55.1 of the HTA;
d) the vehicle will be eligible for release on October 21, 2021;
e) the licence of the driver at the time of the impoundment had been suspended for life three times since 2000. His driving record revealed several convictions for drinking-related offences going back to 1987, the last being April 3, 2014;
f) when the vehicle was stopped, the driver was also given a 90-day licence suspension for refusing to provide a breath sample.
11The appellant testified. She is the mother of four children aged 10,12,16 and 18. She is self employed cleaning houses and says she usually works 3 days a week with 10 regular clients and others that she picks up on referral.
12The appellant’s oldest son started university this year. She said he had “brain surgery” a couple of years ago and suffers headaches if he takes public transit. He has been able to take most of his classes online. However, as he signed up for in-person classes, he has missed a couple of lectures.
13The appellant said she initially used Uber to get to her cleaning jobs and transport her son to university, however she can no longer afford to do so. She said she could also not afford to pay for a rental car. As a result, she said, she has had to cancel some of her work. When she does work she earns $200-$250 daily. She stated she has had to resort to using a food bank because of the lost work income.
14She said she has no family in Canada to assist her, and her only friend works during the day and is unable to help.
15She admitted the driver of the car, Mr. Liendo Mendoza, was the father of her four children. Although he gave the same address as the appellant to the police when he was stopped, the appellant said that was only his “mailing address”, that he has never lived with her and he presently lives with his sister approximately 15 minutes away. The appellant said he is on disability and unable to assist financially.
16The appellant testified on the day the car was impounded she was not feeling well and asked Mr. Liendo Mendoza to drive their oldest son to pick up school supplies. It was during this trip that he was stopped at approximately 4 p.m.. Although the drinking-related driving offences and suspensions of Mr. Liendo Mendoza go back to 1987, the appellant said she was not aware of his driving record and this was the only time he had driven her car. I find this assertion troubling.
17The appellant was emotional at times during her testimony and said on more than one occasion that she and her children should not be punished for “something we didn’t do”.
18There was no corroborating evidence presented by the appellant, by way of confirmation of work lost, medical evidence of her son’s difficulties in taking public transit, the inability of her children’s father to assist or her attestation that she knew nothing about his driving suspensions.
19This is problematic as I had significant difficulty with the veracity of the appellant’s evidence. Simply put, it did not have the ring of truth. I found her answers in many areas to be vague and/or inconsistent.
20In her Notice of Appeal the appellant was less than candid about the circumstances of the driving that lead to the impoundment. She stated: “I am not denying I made a mistake the day I lent my car and failed to check if the person had a driver’s licence”. This scenario differs from the evidence she gave at the hearing, in that at the hearing she said she asked Mr. Liendo Mendoza to use the car rather than lending it to him. It was only when asked by me about why the driver had the same address as hers that she explained the relationship between herself and the driver and then with apparent reluctance.
21The appellant indicated that because English is not her first language she failed to express herself properly in the Notice of Appeal. However, the appellant did not appear to have any difficulty expressing herself in English at any time during the hearing.
22Although I have some sympathy for the situation that the appellant and her children are presently in, I am not able to sufficiently rely on the appellant’s evidence alone to satisfy me, on a balance of probabilities, that she does not have alternative modes of transportation during the period of impoundment. In other words, as I have found her evidence to be so unbelievable, I am not persuaded by her evidence that she has considered and explored all reasonable alternative options. Because the appellant has not demonstrated that there is no reasonable alternative to the vehicle, her appeal must fail because that means I cannot consider economic loss or loss of educational opportunities.
23I find the appellant has failed to prove exceptional hardship under the HTA, and her appeal must fail on this ground.
Order
24For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: October 20, 2021