Natasha Dalley v. Registrar of Motor Vehicles, 2021 CanLII 21417

Date: 2021-03-12

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:

Natasha Dalley

Appellant

• and -

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Natasha Dalley, Self-Represented

For the Respondent: Sonia DeSantis, Agent

Heard by Teleconference March 2, 2021

Overview

1Ms. Natasha Dalley ("appellant") appeals the impoundment of her 2014 Ford Edge ("vehicle"). It was impounded on January 28, 2021 for 45 days when it was discovered being driven by her husband whose driver's licence was then under suspension for an earlier drinking and driving offence.

2The appellant appeals on the ground that the impoundment will result in exceptional hardship.

ISSUE

3Should the Registrar of Motor Vehicles ('Registrar") be ordered to release the appellant's vehicle on the basis that the impoundment will result in exceptional hardship?

DECISION

4I conclude that the impoundment will result in "exceptional hardship" within the meaning of that term under the Highway Traffic Act ("Act") and regulations and I order the Registrar to release the appellant's vehicle.

THE LAW

5Under the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a driver whose licence was under suspension for a variety of reasons, including a previous drinking and driving offence.

6The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

7The Act allows only five specified grounds on which an owner may appeal, and they include "exceptional hardship", the ground the appellant relies on in this case. The onus is on the appellant to establish the facts that support the ground of appeal on a balance of probabilities.

8A regulation made under the Act (Ontario Regulation 631/98 ("Regulation")), sets out the matters that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship;

• The Tribunal must first consider whether an alternative to the impounded vehicle is available,

• If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.

• In order to show that no alternative to the impounded vehicle is available, the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period,

ANALYSIS

9The appellant is a mother of three children who are 13, 10 and 2 years old. Her husband lives at home with the appellant and their children. He suffers from a medical condition and is currently disabled. The impounded vehicle is the family's only means of transportation.

10The appellant financially supports her family through her full-time employment in construction. Her employer has provided her with a vehicle that she uses to get to and from work. However, under her agreement with her employer, she is not allowed to use that vehicle for personal purposes and cannot use it to run family errands or take the children to medical appointments. The appellant has no close family or friends who can assist with the family's transportation needs.

11The appellant testified that her 10-year old son has been diagnosed with ADHD and has expressed thoughts of self harm. He is seen by a social worker regularly. He cannot take the school bus and must be driven by the appellant to school each morning. The appellant has been driving him in her employer's vehicle placing her employment at risk.

12According to the appellant, her son is currently suffering and is "really not doing well". She testified that she is anxious to get him effective treatment as soon as possible. He has been referred to a specialist – a child psychiatrist at the Scarborough General Hospital, and an upcoming appointment has been scheduled. However, the appellant lives in Bowmanville and there is no realistic way to get to the appointment by public transportation. The least expensive alternate method would be to travel by UBER which would cost about $135.

13According to the appellant, that cost is prohibitive given that her income supports a family of 5 and she has no savings.

14According to the appellant, without the impounded vehicle she will likely have to cancel her child's appointment with the specialist and re-schedule. A new appointment will depend on the specialist's availability and will delay getting effective treatment for her son.

15In my view, the appellant has met the onus of establishing that exceptional hardship will result from the impoundment.

16The regulation requires that I consider whether there is any alternative to the impounded vehicle and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.

17With respect to whether an alternative is available, I conclude that no realistic alternative, especially to transport the appellant's son who is in need of medical attention. The appellant's family has only one vehicle – the impounded vehicle. The appellant uses her employer's vehicle to get to work but she cannot use it for personal purposes without jeopardising her employment and her family's income.

18The appellant's son has been referred to a specialist and has a scheduled upcoming appointment - the first step towards getting the child the care that he apparently urgently needs. However, the appellant has no realistic way of getting her son to the specialist, except perhaps by UBER. I accept her testimony that in her circumstances the cost of an UBER is prohibitive and will likely result in having to re-schedule the appointment, delaying treatment. Based on the evidence presented, any delay will result in a threat to the health and safety of the appellant's child.

19Considering all of the circumstances, I conclude that the appellant has met the onus of proving that the impoundment will result in exceptional hardship.

ORDER

20Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant's vehicle.