Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2021-01-11

An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Mary C. Thomas

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Avvy Go, Member

APPEARANCES:

For the Appellant: Mary C. Thomas, Appellant

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: December 31, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Mary C. Thomas 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 November 27, 2020 and a hearing was held on December 31, 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 confirm the impoundment.

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.

11In the limited circumstances outlined below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s.10(2) of the Regulation:

• financial or economic loss to any person;
• loss of employment or employment opportunity to any person; or
• loss of education or training or of an educational or training opportunity to any person.

12Financial, employment and educational losses may only be considered if all the criteria listed in s.10(3) of the Regulation are met:

a) no alternative to the impounded motor vehicle if available;

b) the loss will be immediate, significant and lasting;

c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

d) the impact of the loss,

i. will be upon a person other than the person whose driving while his or his driver’s licence was under suspension resulted in the impoundment of the motor vehicle; and

ii. will be a result of a loss by the suspended driver of the type set out in clause 2(b), (c) or (d)

13Sections 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.

14The 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.

15Following 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

16The appellant lives in Kingston. Her 38-year-old son, who lives in Amherstview, works as a manager of a Shoppers Drug Mart in Napanee. He has held that position for two and a half years and has worked for Shoppers for 15 years.

17The appellant’s son was convicted of impaired driving when he was 18 years old and lost his G1 licence at the time. To get his licence back, he must first complete a Back on Course, before retaking all the licence exams. At the time of the hearing, the appellant’s son has arranged to take the course. Since he does not have a driver’s licence, prior to the pandemic, the appellant’s son travelled to Napanee for work through rideshare. Due to the pandemic, he lost his ride.

18To help her son, the appellant started driving her son to work when the lock down began. The commute would take three hours each day for the appellant, who had to drive to Amherstview from Kingston to pick up her son to Napanee and did the reverse for the return trip. As the driving was proving too much for her to handle, the appellant leased a second vehicle in April for the sole purpose of facilitating her son’s commute to work. An arrangement was made for a retired man living in her son’s building to be the driver, and the appellant would simply leave the leased vehicle in Amherstview for the use of her son, who covers all the expenses – including the monthly payment and gas – on the leased vehicle.

19Meanwhile, the appellant has another leased vehicle, a van that she uses for her own daily use.

20On the day of the impoundment, the vehicle used by her son was taken to Canadian Tire to have the tires retorqued. The designated driver was to pick it up later in the day. By 5:00 p.m. the Canadian Tire auto section was closed, and the drive had not shown up yet and could not be reached. The appellant’s son went and got the vehicle to drive it home. He was pulled over by the OPP and the vehicle was impounded.

21Coincidentally, the appellant’s van broke down on December 4, 2020. The appellant brought it in for repair on December 17, 2020 and retrieved it on December 18, 2020. Between December 4, 2020 and December 18, 2020, the appellant’s son had to find some other arrangements for work.

22Due to her disability, the appellant stopped working over ten years ago and is now living on fixed pension income. The appellant lives alone and does not have anyone else who could help her out with her day-to-day errands. The appellant has been relying on her van to do grocery shopping and attend at various medical appointments.

Is there No Alternative to the Impounded Vehicle?

23The 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 alternatives to the impounded vehicle.

24It is important to note that the impounded vehicle is not used by the appellant, but by her son to go to work. Throughout the impoundment period, the appellant has access to a second vehicle, her van. There was a two-week period when the van was out of commission, but when the appellant took it in for repair, it was fixed the following day. The appellant explained she did not take the van in for repair sooner because she did not realize that she could pay for the repair through installments. However, the fact that the van was out of commission was unrelated to the impoundment, as the impounded vehicle was never meant for the appellant’s own use.

25The appellant also acknowledged that her son could pay for rides but has decided not to due to cost. In the appellant’s estimate, it would cost her son about $150 a day to travel between Amherstview and Napanee through paid service.

26During the time when the appellant’s van was unavailable, the appellant’s son managed mostly by taking time off as well as working from home. He was also able to get others (including his own father) to drive him to work on a few occasions. Since then, the appellant has resumed driving her son to work, just as she had done back in March.

27While I appreciate it is not an ideal situation to have the appellant drive her son to work, it was in fact the initial plan that the appellant and her son had put in place immediately after the lock down in March. The appellant’s son was also able to arrange for rides from others when the appellant’s van was unavailable. I also appreciate that it may cost more for the son to find some other ways to commute to work, and he may have to speak to his employer to allow him to work from home until the end of the impoundment period, the fact remains that all of the above alternatives do exist and have, in one way or another, mitigated the inconveniences caused by the impoundment,

28Based on all of the above, I thus find that there are alternatives to the impounded vehicle.

Is there Exceptional Hardship?

29If I am wrong about my finding as to an alternative to the impounded vehicle, I still find that the appellant has not established there is exceptional hardship for the following reasons.

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

30I first determine whether there is any threat to the health and safety of any person ordinarily transported by the motor vehicle, and the answer is no.

31The person who is ordinarily transported by the impounded vehicle is not the appellant, but her son. The appellant did not mention that her son has any health and safety issue and the reason for the leased vehicle is simply to allow him to go to work in a different city.

32I also take into account the appellant’s own health concerns, given that the impoundment may have an indirect impact on the appellant’s own health and safety. The appellant has had three strokes in the past. She also has several ongoing medical conditions, one of which requires her to take regular blood test, and another affects her ability to swallow. During the time when her van was out of commission, the appellant made and cancelled two appointments with a speech pathologist but has rescheduled the appointment since. Also when her van was not in use, the appellant had to buy grocery from a local store, instead of a larger store further away that offers more options for healthy food. Be that as it may, the appellant has not provided any evidence of any threat to her health. While the appellant has provided some medical reports in support of her appeal, some of reports the appellant has submitted are dated more than a year ago, and none of the reports suggest that the appellant’s health and safety was threatened in any way during the impoundment period.

33The appellant does have access to her van now and is able to attend at medical appointments if necessary.

34More importantly, the appellant confirmed that she did not experience any medical event or episode during the impoundment period that would require a third-party intervention.

35The appellant also does not provide any information about anyone else whom she transports in her vehicle and if their health and safety has been threatened. The appellant mentioned that a number of her family members have various medical conditions, but there is no evidence that the appellant has to use the impounded vehicle – or her van for that matter - to transport anyone of them at any given point in time.

36Therefore, I find the appellant has failed to establish exceptional hardship on the ground of threat to health and safety.

ii. Is there any economic loss that is immediate, significant and lasting?

37The appellant is also concerned about the financial impact of the impoundment. The appellant has to pay $3700 for the release of the vehicle.

38Under the law, the impoundment fee itself cannot be considered exceptional hardship. Besides, the appellant confirms that her son is looking into borrowing money to cover the impoundment fee.

39The appellant did not experience any interruption with respect to the government benefits she needs to support herself.

40Based on the above, I find the appellant has not 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 confirms the impoundment of the appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

_________________________

Avvy Go,

Member