Date: 2021-02-02

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:

Emily Coles

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Joanne E. Foot, Member

APPEARANCES:

For the Appellant: Self-Represented

For the Respondent: Sanjay Kapur, Agent

Held by Teleconference January 7, 2021

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on January 7, 2020 to consider the appellant’s appeal of the 45-day impoundment of her 2009 Jeep (the “vehicle”). The vehicle was impounded on November 28, 2020.

B. ISSUE

2The sole issue raised by the appellant in this appeal is whether the impoundment of the vehicle results in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

C. RESULT

3While the impoundment of the appellant’s car has caused stress, inconvenience, reduced income and increased costs for the appellant, she has not demonstrated that there is no alternative to the impounded vehicle in that she has been walking to work, using Uber when necessary, and receiving the assistance from family members from time to time. Accordingly, I confirm the impoundment.

D. EVIDENCE AND ANALYSIS

4The appellant works as a nurse for a private client. She works a split shift for this client, a morning shift and an evening shift. She is also on-call for this client, that is, she attends on short notice if he needs her outside of her regular shifts.

5On the evening of the impoundment, she had been out for dinner with a friend (the “driver”). She had asked the driver to drive home from the restaurant, assuming that he had a valid driver’s licence. He was pulled over at a spot check and the officer learned that his driver’s licence had been suspended in connection with a conviction for a Criminal Code offence. The vehicle was then detained for impoundment.

6The appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. She is asking the Tribunal to order the Registrar to release her vehicle.

7I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Act and its regulations.

8Under the Act, where a police officer is satisfied that a person is driving while his or her driver’s licence is suspended for certain reasons, the officer is required to detain and impound the vehicle. Section 55.1 of the Act sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

9Subsection 50.2(3) of the Act 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 paragraph (d) of subsection 50.2(3), which states:

The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

10Section 10 of O. Reg. 631/98 under the Act (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, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he 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.

11The appellant bears the burden of proving one of the grounds of appeal set out in Subsection 50.2(3) of the Act.

12Following 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.

13As noted, in order to establish exceptional hardship under s. 50.2(3)(d) of the Act, the appellant must first establish that there is no alternative to the impounded vehicle as further described in subsection 10(4) of the Regulation. This provision requires that the appellant consider every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. If the appellant is able to establish that there is no alternative, the appellant must then also show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(3) of the Regulation.

The appellant’s circumstances

14The appellant lives in Cambridge and works as a nurse for a private client. Typically, she drives the vehicle to her scheduled morning and evening shifts. She also uses her vehicle when she receives a call from her client for additional care. Since the impoundment of her vehicle, she has either been walking or taking an Uber to and from the home of her client for her regular shifts. She explained that she has been unable to respond to the additional calls from her client for care as she needs her vehicle to attend quickly. As well, the Uber charges to and from her client’s residence amount to about her hourly wage, such that there is no economic advantage to her to answer these calls. The appellant also indicated that family members have assisted her on occasion and that she reimburses them for the cost of gas. During the period of impoundment, another nurse has been taking the on‑call requests of her client, but she expects to resume answering those calls once her vehicle is returned.

15The appellant has been able to attend to her other day-to-day activities and neither she nor her son have missed any doctor appointments during the impoundment period. She has been walking to shopping or had assistance of family members. She also stated that she has been doing a lot of corner store shopping.

16The appellant indicated that the impoundment of her vehicle is causing financial stress. During the pandemic, she has not been permitted to take on work with clients other than her regular client which has limited her financial possibilities. The impoundment has given rise to the additional expense of taking Ubers and paying family members to drive her. The impoundment has caused additional strain on her because she has not been able to pick up the “on-call” income with her regular client. As well, she expects the impoundment fees to be about $1,900, an amount that she feels she is unable to afford.

17The appellant was exceptionally candid in giving testimony, which was noted by the Agent for the Registrar.

Alternative to the impounded vehicle

18I accept that the impoundment of the vehicle has resulted in increased expenses and decreased income for the appellant. The amount of the impoundment fees will cause the appellant even greater financial stress. Doubtlessly, the entire situation has been a source of worry and inconvenience to the appellant. However, as explained at the hearing, the grounds of “exceptional hardship” are very narrow and, as an initial hurdle, the appellant must demonstrate that she has no alternative to the impounded vehicle.

19I find that the appellant has failed to establish that the impoundment of her vehicle will result in exceptional hardship. Her use of Uber and the occasional assistance she receives from her family members and walking to work has permitted her to carry on with her job and her day-to-day activities. As a result, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been satisfied.

E. CONCLUSION

20For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.