Tribunals Ontario

Licence Appeal Tribunal

Date: 2021-04-12

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:

Denis Wright Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances: For the Appellant: Dennis Michael Wright, representative for his father, Denis George Wright For the Respondent: Sonia De Santis, Agent

Place and date(s) of hearing: By Teleconference March 19, 2021

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on March 19, 2020 to consider the appellant’s appeal of the 45-day impoundment of his 2014 Kia Sorrento (the “vehicle”). The vehicle was impounded on February 11, 2021.

2The appellant’s adult son, Dennis Michael Wright (“Michael Wright”), attended the hearing to act as the appellant’s representative. He was the driver of the vehicle at the time it was impounded.

B. ISSUES

3The issues to be determined are whether:

a. the licence of the driver of the vehicle was under suspension at the time of the impoundment within the meaning of s. 50.2(3)(b) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”); or

b. the impoundment results in exceptional hardship to the appellant within the meaning of s. 50.2(3)(d) of the Act.

C. RESULT

4I have found that:

a. Michael Wright’s driver’s licence was under suspension at the time the vehicle was detained for impoundment; and

b. the appellant has not established that the impoundment results in exceptional hardship.

Accordingly, I confirm the impoundment.

D. LAW

5Under the Act, where a police officer is satisfied that a person is driving while his or her driver's licence is suspended for certain offences, 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 past two years.

6Subsection 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.

7The appellant bears the burden of proving one of the grounds of appeal set out in Subsection 50.2(3) of the Act.

8Following 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.

E. EVIDENCE AND ANALYSIS

Background Information

9The appellant lives Michael Wright in Everett, a small town about 20 minutes north of Alliston. The appellant’s only source of income is CPP. He was diagnosed with bladder cancer at some point prior to the impoundment of the vehicle and had been receiving treatments for that condition. Michael Wright’s only source of income is ODSP.

Issue 1: Was Michael Wright’s Driver’s Licence under Suspension?

10Michael Wright argues that his driver’s licence was not under suspension at the time that the vehicle was detained for impoundment. He testified about the events leading to the vehicle being impounded.

11Michael Wright had been out the night before and was returning home in the morning. While driving, when he was not too far from his home on Main Street in Everett, he began to feel unwell and pulled over to the side of the road. Passers-by stopped and enquired about his health. He responded that he was okay and when he felt better he drove the rest of the way home and went inside. Not long after, he responded to a knock on the door and was arrested for impaired driving. The vehicle was towed away from the garage of his home at that time.

12The Agent for the Registrar of Motor Vehicles (the “Agent”) produced a document prepared by the Ministry of Transportation entitled Extended Driver Record Search for Criminal Code Convictions dated March 19, 2021. This document shows the history of Michael Wright’s driver’s licence in relation to Criminal Code convictions. It showed that his driver’s licence was suspended on December 17, 2013 when he was convicted for impaired driving under the Criminal Code. While the document indicated that Michael Wright’s driver’s licence remained suspended until December 17, 2016, there is no notation that his driver’s licence had been reinstated, as was indicated for an earlier suspension of his driver’s licence.

13Michael Wright explained that he believed his driver’s licence had been reinstated as he had received a call from the “Alcholock”, the company that had installed the ignition interlock device on his vehicle, informing him that the ignition interlock device could be removed. The ignition interlock device was removed in about February 2020. Michael Wright testified that he had been to the Service Ontario in Alliston, enquiring about his new driver’s licence. He testified that he was not told that his driver’s licence was under suspension at that time and was informed that his new driver’s licence would arrive in the mail in due course.

14The Agent explained that when an ignition interlock device is removed, the driver's licence remains under suspension and the company installing the device has no authority to reinstate a driver's licence. The Agent also indicated that a system-generated letter dated August 26, 2019 was sent to Michael Wright explaining that he would need to have a Substance Use Assessment Form completed by his physician before his driver's licence would be reinstated. Though this letter was sent to his current address in Everett, Michael Wright maintains that he did not receive the letter. On balance, I do not find it credible that Michael Wright was not aware that his driver’s licence remained under suspension.

15Based on the Extended Driver Record Search for Criminal Code Convictions dated March 19, 2021, I find that Michael Wright's driver's licence was under suspension at the time that the vehicle was detained for impoundment. In consequence, I am unable to order the return of the vehicle to the appellant under s. 50.2(3)(b) of the Act.

Issue 2: Is the Impoundment Causing Exceptional Hardship?

16Michael Wright argues that the impoundment will result in exceptional hardship to him and to his father. Michael Wright’s three children live in Toronto and he needs the vehicle to visit them. The appellant is being treated for bladder cancer and requires the vehicle to attend treatments.

17Section 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.

18Section 10(1) of the Regulation requires the Tribunal to consider whether an alternative to the impounded vehicle is available. 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.

19If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

20The Tribunal is generally precluded by s.10(2) of the Regulation from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s.10(3) of the Regulation provides that the Tribunal can consider these things if the owner demonstrates the following:

(a) no alternative to the impounded motor vehicle is 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 her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

21The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

22Michael Wright testified Everett is unserved by public transportation, which I accept. He also said that his father, the appellant, owns a Dodge Caravan that is both roadworthy and licenced. His father prefers to use the impounded vehicle because it is 4-wheel drive and safer in winter conditions. Michael Wright indicated that his father’s last cancer treatment occurred before the vehicle was impounded, and that he has not missed any treatments owing to the impoundment of the vehicle. Michael Wright also indicated that his father had a procedure scheduled for the following week and other follow-up appointments in the near future. The Agent mentioned that the Canadian Cancer Society can sometimes assist with these appointments for cancer patients. Assuming that his driver’s licence is not under suspension, Michael Wright is also able to use the Dodge Caravan to visit his children.

23I accept that the impoundment of the vehicle and related matters is a stressful situation and has resulted in some inconvenience. However, as noted, the grounds of “exceptional hardship” are very narrow. The appellant has failed to establish that no alternative to the impounded vehicle exists and, as such, the Tribunal cannot consider any of the factors referred to in ss. 10(1) or (2).

24I find that the appellant has failed to establish that the impoundment of the vehicle will result in exceptional hardship as he is able to use the Dodge Caravan that he owns. Likewise, if Michael Wright is permitted to drive, he is able to use the Dodge Caravan. For the reasons given above, the legal test for exceptional hardship under s.50.2(3)(d) of the Act has not been satisfied.

F. CONCLUSION

25For 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.