Kelly Vickerd v. Registrar of Motor Vehicles, 2021 CanLII 28708

Date: 2021-03-24

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:

Kelly Vickerd

Appellant

• and -

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Kelly Vickerd, Self-Represented

For the Respondent: Stella Velocci, Agent

Date of Teleconference Hearing: March 18, 2021

Overview

1Ms. Kelly Vickerd (“appellant”) appeals the impoundment of her 2014 Ford F/E (“vehicle”). It was impounded on February 28, 2021 for 45 days when it was discovered being driven by her husband whose driver’s licence is under suspension for an earlier Criminal Code offence.

2The appellant appeals the impoundment 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 previous Criminal Code offences.

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 factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship;

a. The Tribunal must first consider whether an alternative to the impounded vehicle is available.

b. 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.

c. The Tribunal shall not consider loss of employment unless the owner demonstrates that:

i. No alternative to the impounded vehicle is available.

ii. The loss will be immediate, significant and lasting.

iii. The impact of the loss will be on a person ordinarily transported by the vehicle; and

iv. The impact of the loss will be on a person other than the suspended driver.

d. 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.

THE IMPOUNDMENT

9The appellant and her husband live together with their 12-year-old child in Sunderland. Ontario. They live in a rural area not served by any public transportation.

10The family owns two vehicles. The impounded vehicle is the family’s primary vehicle and the other is a truck which the appellant’s husband uses on a seasonal basis to repair barns. The truck is normally driven by the husband’s business partner. It is used to haul material such as lumber to work sites and has not been properly maintained. According to the appellant, the vehicle is unreliable to operate over any significant distance - it requires new brakes and the tires leak and must be re-inflated after driving a short distance.

11The appellant’s husband works seasonally, is presently unemployed, and is receiving EI benefits which, according to the appellant, will soon run out. When working, the husband relies on his business partner to drive the truck, but the partner is currently staying with his family near Midland, Ontario because his father is in the latter stages of a terminal illness.

12The appellant financially supports her family through her part time employment at a factory in Alliston, located about 85 km from Sunderland. She recently obtained that employment and has been assigned two night shifts per week, although her employer sometimes offers her two additional night shifts. The family depends on the appellant’s income from that job. She must get to and from Alliston each night to attend work. The appellant cannot afford to rent a vehicle for the duration of the impoundment.

13Without the impounded vehicle, the appellant has had to use the barn repair truck to get to work although it is unsafe, and she must stop half-way to and from Alliston to inflate the tires. The appellant testified that her family cannot afford to fix that truck now, especially given the fines and impound fees that are looming.

ANALYSIS

14In my view, the appellant has met the onus of establishing that exceptional hardship will result from the impoundment.

15The regulation requires that I firstly 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.

16With respect to an alternative to the impounded vehicle, I conclude that no realistic alternative is available to the appellant. As noted, there is no public transportation servicing the region in which the appellant lives. Moreover, the appellant has only one reliable, safe vehicle available – the impounded vehicle. The Registrar argues that the appellant has an alternative in the barn repair vehicle, however, I accept the appellant’s testimony about its lack of safety and reliability. The family depends on the appellant’s employment income and her employment depends on safe, reliable transportation to get her to and from Alliston. I conclude that the appellant has no alternative to the impounded vehicle within the meaning of the Regulation.

17With respect to whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle, I note that there is no evidence that the impoundment will result in the appellant or her family missing doctor’s appointments or urgently required medical care.

18However, I also note that the impoundment effectively puts the appellant in a position where she must either take her chances driving an unsafe vehicle for significant distances at night or stop going to work which will jeopardise her family’s economic well-being. That is a difficult choice. The appellant has so far used the barn vehicle to get to work, effectively choosing her family’s economic well-being over her own safety. In my view, the impoundment has thus resulted in circumstances which threaten her safety.

19I also conclude that the impoundment will potentially result in the loss of the appellant’s employment. If the appellant chooses not to drive the unsafe barn vehicle to work and back for the duration of the impoundment, she will not be able to attend work and will likely lose her employment and the modest income upon which she and her family depend. So far, the appellant has chosen to drive the barn repair vehicle which I conclude jeopardises her safety. However, if she chooses not to drive that vehicle, she will place her employment and family income in jeopardy.

20The loss of the appellant’s employment will eliminate the family’s principal source of income and will thus have an immediate, significant and lasting impact on the appellant and her child, both of whom are ordinarily transported by the impounded vehicle.

21In summary, considering the factors set out in the Regulation, I conclude that in the appellant’s circumstances, the impoundment will result in exceptional hardship. It has placed her in the difficult position of choosing between driving an unsafe vehicle for significant distances at night and jeopardising her physical safety or putting her employment and family’s main source of income at risk. In all of the circumstances, I conclude that the appellant has met her onus of proving that the impoundment will result in exceptional hardship.

ORDER

22Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant’s vehicle.