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:
Autumn Lee Burkey
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Avvy Go, Member
Appearances:
For the Appellant: Autumn Lee Burkey, Appellant
For the Respondent: Sanjay Kapur, Agent
Genevieve Larcohe, Witness
Mackenzie Nichol, Witness
Place and date(s) of hearing:
By teleconference
February 22, 2021
REASONS FOR DECISION AND ORDER
A. Overview
1The appellant Autumn Lee Burkey appeals the 45 days impoundment of her motor vehicle. The appellant raises two grounds in her appeal: a. that she was driving the vehicle and her licence was not under suspension at the time of impoundment, and b. that the impoundment resulted in exceptional hardship.
2The appellant’s vehicle was impounded on December 15, 2020. The appellant filed her appeal on January 19, 2021, after the 15-day deadline has expired. By an order dated January 29, 2021, Vice Chair Crijenica granted the appellant’s motion to extend the time to file an appeal and order the matter to proceed to a hearing without the need for a case conference. A hearing was held on February 22, 2021, 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”).
3The appellant has already retrieved her vehicle.
4For the reasons set out below, I confirm the impoundment.
B. ISSUES:
5The issues under the appeal are:
a. Whether the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
b. Whether the impoundment will result in exceptional hardship.
C. LAW:
6Under 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.
7The impound period is 45 days if there has been no previous impoundment in the last two years.
8Subsection 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.
9The appellant appeals on the basis of s. 50.2(3)(b) and (d), namely:
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(d) that the impoundment will result in exceptional hardship.
10Section 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.
11Section 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.
12If 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.
13In 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.
14Financial, 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)
15Sections 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.
16The 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.
17Following 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
18The appellant lives alone with her three children (aged 10, 2 and a half, and 1 respectively) in Stratford. Between August 2020 and December 2020, she was working at One Roof Youth Services (“One Roof”) in Kitchener. She also had a part time employment with a group home between October 2020 and January 2021. Prior to those jobs, the appellant last worked in 2018 and for the following 18 months, she was receiving EI maternity benefits.
19The appellant’s vehicle was impounded on December 15, 2021 around 7:30 p.m. after the police charged a male friend found in the appellant’s vehicle for driving while his licence was under suspension.
20On December 18, 2021, three days after the impoundment, the appellant received a written notice of employment termination from One Roof notifying that the appellant’s employment was terminated without cause.
21The appellant claims that due to lack of childcare and other issues, she eventually also could not continue with her part time employment. The appellant is currently receiving Employment Benefits in the amount of over $2,000 a month. The appellant was making about $1,350 by-weekly during the time she was employed in both jobs.
Was the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension?
22The appellant claims that she, not her male friend, was in fact driving the vehicle at the time when it was impounded by the police.
23The evidence given by the appellant on this account was vague and amounted to no more than an assertion that she was the driver at the time. When asked to comment on why the police officer would believe otherwise, the appellant explained that it was possibly because her male friend leaned over to give her a kiss on the cheek.
24The appellant testified that, after the police stopped their vehicle, she told the officer her male friend was not driving. Also, according to the appellant, the officer “seems very confused when he came up to the car, and he asked why I would let him drive.” The appellant said the officer chastised her for letting her friend drive.
25The Registrar called the police officer Mackenzie Nichol, who impounded the appellant’s vehicle, to testify at the hearing.
26Officer Nichol testified that he was working night shift on December 15, 2020. At around 7:30 p.m., his police cruiser was stopped at a stop sign facing north bound, when he saw a vehicle going west making a left hand turn. Officer Nichol noticed the vehicle making a jolt, and not a smooth turn. As a result of the left hand turn, the driver of that vehicle was facing directly at Officer Nichol, who by then was about 5 to 10 meters away. Officer Nichol recognized the driver to be someone whom the officer has dealt with in the past and whom the Officer believed not to have a valid licence due to his past criminal convictions.
27Officer Nichol then made a U turn to follow the vehicle in question. After he made the turn, he saw that the vehicle had already pulled over to the side of the street. Officer Nichol then activated the emergency light and pulled up his cruiser behind the vehicle. He noticed that the vehicle was rocking back and forth and saw the driver and the passenger changing seats. The officer then placed the male person under arrest and proceeded to impound the vehicle.
28Officer Nichol further testified that he spoke with the appellant, who was emotional, crying, and said to the Officer “I don’t know why he was driving”.
29The Officer was questioned by the appellant about the visibility at the time of the impoundment. The appellant suggested that sunset on that day was before 5:00 p.m. instead of being much later as the officer has suggested. Officer Nichol conceded that he may have been wrong about the sunset hour, but he was 100% certain that the driver was male, and not the appellant.
30In reply, the appellant submitted that she decided to pull over her vehicle before the Officer activated his emergency light, just to prove that she had her licence.
31I have carefully considered the evidence of the appellant and that of the officer, and I find the appellant’s version of event not to be credible. To start, the appellant did not give any explanation as to how and why her vehicle came to the attention of Officer Nichol. Her reason for pulling over her vehicle before the Officer even activated the emergency light or otherwise issued any direction for her to stop is not credible, neither is her evidence that the Officer has mistaken her male friend to be the driver simply because he leaned over to give her a kiss on the cheek. Unless the officer was confused about where a driver would be seated in a vehicle, seeing a passenger leaning over to kiss the driver could hardly be mistaken for the passenger being in the driver seat. The appellant also did not offer any credible explanation as to why she or her male friend may have been targeted by the officer in question.
32On the other hand, I find the Officer has given his evidence in a straight-forward manner. The Officer gave a detailed and inherently consistent account of what he saw on the day: how the appellant’s vehicle came to his attention, whom he saw to be driving the vehicle, and what happened after the Officer decided to follow the vehicle. Much of what the Officer testified was left unchallenged by the appellant. While the Officer may not have recalled the specific time of sunset on the day in question, his testimony remained firm that he was 100% certain the driver was a male person that was known to him. The Officer’s version of event would reasonably explain why he decided to follow the appellant’s vehicle in the first place, whereas the appellant did not even offer any alternative explanation in that regard.
33As the burden falls on the appellant to demonstrate that the driver’s licence of the driver of the motor vehicle at the time of impoundment was not then under suspension, I find the appellant has failed to discharge that burden. On a balance of probability and based on the evidence before me, I find that the appellant’s male friend was driving the vehicle when it was making a left hand turn and the vehicle was brought to the attention of Officer Nichol. I also find that the appellant’s friend pulled the vehicle over to the side of the street; at that point, the appellant then changed seat with the driver to make it look like she was the driver all along.
34In light of the above, I find the appellant has failed to meet the ground of appeal under s. 50.2(3)(b) of the Act.
Did the Impoundment Result in Exceptional Hardship?
a. Is there No Alternative to the Impounded Vehicle?
35Before I could consider the ground of appeal based on exceptional hardship, the 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.
36Like the evidence the appellant gave with respect to who was the driver, her testimony on the issue around alternatives to the impounded vehicle is equally vague and lacks credibility.
37According to the appellant, she notified the manager at One Roof on the evening of December 15, 2020 to advise her that the appellant’s vehicle was impounded. Her manager had called her back either that same night or the following morning before her shift started at around 8:30 a.m. The appellant said that she was “technically supposed to go to work”, and she that she would not be able to come in without a rental vehicle. The appellant said the manager told her she had until Monday to find another way to go to work. The appellant then rented a vehicle for Friday, as she would also need the vehicle for her weekend part time work. The appellant then rented a vehicle from December 18, 2020 to January 4, 2021.
38However, by Friday, she was advised by One Roof that her employment would be terminated.
39Under cross examination, the appellant explained she did not just show up for work at One Roof on December 16 morning, because her shift had already started. Her employer would have already made arrangement for someone to take her shift. The appellant also explained that the rental car was not in her possession, and that she wanted to make sure her employer wanted her for work, because One Roof had first given her until Monday to return to work.
40The Registrar called, as a witness, the appellant’s manager at One Roof. The Registrar was also going to call the CEO at One Roof to testify. The appellant raised objection about the manager Genevieve Laroche as a witness, as she is still employed by One Roof. The appellant also objected to the CEO as a witness on the basis that she is biased against the appellant. I allowed Ms. Laroche’s testimony, but not the CEO’s.
41According to Ms. Laroche, on the evening of the 15th around 8:30 p.m. the appellant texted her that she got into a car accident. Ms. Laroche replied around midnight to see the appellant was okay and indicated they would talk more in the morning.
42The next morning around late morning, as no one at One Roof has heard from the appellant, Ms. Laroche connected with her. At that point, the appellant advised her that her car was impounded. Ms. Laroche told her that the appellant needed to come back to work and needed to find a way to get to work, as they needed someone to perform her role. By Friday, the appellant had still not yet gotten a rental car and said she may be able to get something on the following Monday. Ms. Laroche connected with the CEO, and based on a number of reasons, the agency decided to terminate the appellant.
43At this stage of the analysis, the issue I have to consider is whether there were alternatives to the impounded vehicle, and based on the appellant’s own testimony, the answer was clearly yes.
44The appellant was able to rent a vehicle – whether through her own resources or money provided by the father of her child(ren) – during part of the impoundment. The appellant’s explanation as to why she decided not to get a rental car on the 16th of December, the day after the impoundment, was not plausible. The appellant’s testimony that she was given until Monday to return to work was contradicted by Ms. Laroché’s evidence. But more importantly, it was also contradicted by the appellant’s own testimony when she stated that she waited until Friday as she wanted to make sure she was needed for work, and that she needed the vehicle for her weekend employment. In other words, it was the appellant’s own decision to not to secure an alternative vehicle immediately after the impoundment, but rather wait until three days later to get a rental vehicle.
45There was no evidence to suggest that the appellant would not have been able to rent a vehicle on Wednesday December 16, 2020, had she decided to do so. Her explanation that she wanted to make sure she was needed for her work at One Roof was not credible, since she was employed as a full-time employee who was scheduled to work from Monday to Friday. Even if the appellant had reason to assume that her employer would have arranged someone else to take her shift on the morning of December 16, 2020, she has offered no plausible explanation for not renting a vehicle sooner.
46During part of the impoundment period, the appellant did in fact have an alternative vehicle, and she confirmed that she was also able to go her grocery through online order. Her decision not to rent a vehicle earlier than Friday December 18, 2020 does not change the fact that alternatives were available to her for the impoundment period.
47Based on all of the above, I thus find that there are alternatives to the impounded vehicle.
b. Is there Exceptional Hardship?
48If 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?
49I 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.
50The appellant testified that her oldest son suffers from PTSD, and her youngest son has speech issue. The appellant and her oldest son receive treatment together from the same health care professional. The appellant also confirmed that such treatment was available online and over the phone. During the impoundment period, the appellant missed a few appointments not because of the loss of the use of the impounded vehicle, but due to her feeling overwhelmed.
51The appellant did not give any evidence with regard to any threat to the health and safety to herself or her children as a result of the impoundment.
52Therefore, 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?
53The appellant submitted that she suffered financial hardship as a result of the impoundment. As noted above, the appellant said she was told by the manager that she could wait till Monday to come in to work. But then after speaking to the CEO, the manager advised her she was terminated. The appellant testified that at the time, the CEO’s son was her fiancé. The appellant told her fiancé whom she was with at the time of impoundment. She believed that her fiancé then told his mother about it, which led to her termination. The appellant said that she had already passed her probation and the termination was for a personal reason.
54Ms. Laroche testified that there were several reasons to terminate the appellant without cause, not having transportation was but one of them. However, I would also note that Ms. Laroche confirmed under questioning that she spoke to the CEO about the issue of termination after being advised by the appellant that her vehicle was impounded. Ms. Laroche also admitted she did tell the appellant at first that the former would try to find some other ways to work with the appellant instead of terminating her. By the time the appellant obtained her rental vehicle on Friday, however, a decision has already been made to terminate the appellant; whether or not she was able to rent a car was no longer relevant.
55Assuming, at this moment of the analysis, that the loss of employment at One Roof resulted in economic loss that is immediate, significant, and lasting, I find there is insufficient evidence that the appellant lost her employment due to the impoundment.
56By the appellant’s own account, the CEO’s decision to terminate her was “personal” in nature, arising from her conversation with her fiancé about who was with the appellant that evening, and not about the impoundment per se.
57As well, as noted above, the appellant made a decision to wait until Friday to rent a vehicle, and not sooner. There was a gap of three days between the impoundment on December 15, 2020 and the day of her termination on December 18, 2020. I have already ruled as not credible the Appellant’s explanation for the delay in her decision to rent a vehicle. Thus, even if the loss of vehicle has triggered the termination, it was not caused directly by the impoundment, but by the appellant’s delay in renting a vehicle in order for her to continue working.
58If I am wrong in that regard, I also find the loss of employment did not result in economic loss that is significant, immediate, and lasting. The appellant has only started at One Roof roughly four months before the impoundment. As a result of her loss of employment, the appellant was able to obtain Employment Insurance (EI) benefits. During the COVID-19 pandemic, the Federal Government has beefed up EI benefits to $500 a week. The appellant testified that she was able to get additional top up benefits due to her family circumstances. While the appellant’s income has decreased as a result of her loss of employment at One Roof, I do not find the decrease to be significant in light of the EI benefits.
59The appellant testified that she is currently looking for employment. While I appreciate that the job market situation is less than ideal during the pandemic, there is insufficient evidence before me to indicate that the appellant would not be able to find another suitable employment in the near future, as she had done – not once but twice - during the height of the pandemic in 2020.
60Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.
ORDER:
61For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal dismisses the appeal and confirms the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
____________________________ Avvy Go, Member
Released: March 02, 2021