Licence Appeal Tribunal Safety, Licensing Appeals and Standards Division

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2021-01-05

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:

Sheenah Wilce Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: Self-Represented

For the Respondent: Sonia De Santis, Agent

Place and date(s) of hearing: By Teleconference

December 3, 2020

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on December 3, 2020 to consider the appellant’s appeal of the 45-day impoundment of her 2009 Volkswagen Golf (the “vehicle”). The vehicle was impounded on November 2, 2020.

B. ISSUE

2The sole issue raised by the appellant in this appeal is whether the impoundment of the vehicle results in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

3After hearing from the appellant on the circumstances leading to the impoundment, the Tribunal noted that the “stolen” ground of appeal under s. 50.2(3)(a) may be relevant to this appeal. Despite being informed of this, the appellant was clear and consistent that she did not wish to pursue the “stolen” ground of appeal. Accordingly, the Tribunal has only considered the ground of appeal raised by the appellant.

C. RESULT

4While the impoundment of the appellant’s car has caused stress, inconvenience and increased costs for the appellant, she has failed to demonstrate that there is no alternative to the impounded vehicle, as she has been using Uber to travel to her child’s daycare and has received some assistance from her mother. Accordingly, I confirm the impoundment.

D. EVIDENCE AND ANALYSIS

5The appellant is a single mother of a three-year-old daughter and a full-time student at Georgian College in Barrie. They live with the appellant’s mother in a house in Innisfil. On the morning in question, the appellant’s mother was driving the appellant and her daughter to a hospital in Barrie as the child was feeling unwell and had experienced febrile seizures in the past. The vehicle they were using was not the vehicle that was ultimately impounded. The appellant informed Mr. Travis Sedore, her former partner and the child’s father, of the situation as they were travelling to the hospital.

6Mr. Sedore walked to the appellant’s residence, let himself in, located the keys to the vehicle and took the vehicle, intending to go to the hospital. On the way, he was stopped by a police officer who determined that Mr. Sedore’s driver’s licence was suspended as a result of a criminal conviction. The police officer then detained the appellant’s car and directed that it be impounded for 45 days.

7The appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. She is asking the Tribunal to order the Registrar to release her vehicle.

8I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Act and its regulations.

9Under the Act, where a police officer is satisfied that a person is driving while his or her driver’s licence is suspended for certain reasons, 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 last two years.

10Subsection 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. The appellant appeals on the basis of paragraph (d) of subsection 50.2(3), which states:

The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

11Section 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, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. 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.

12The appellant bears the burden of proving one of the grounds of appeal set out in Subsection 50.2(3) of the Act.

13Following 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.

14As noted, in order to establish exceptional hardship under s. 50.2(3)(d) of the Act, the appellant must first establish that there is no alternative to the impounded vehicle, which requires that she consider every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. If the appellant is able to establish that there is no alternative, the appellant must then also show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(3) of the Regulation.

The appellant’s circumstances

15The appellant submits that she lives in a rural area unserved by public transportation. She testified about the circumstances on the morning that the vehicle was impounded.

16She also gave testimony about her living and financial situation. Her only source of income is her OSAP loan; Mr. Sedore is not helpful financially. She and her daughter live in her mother’s house, and she pays her mother rent of $500 per month.

17The appellant carries a full course load, five days per week. She sends her daughter to daycare three days each week to permit her uninterrupted time during which she can study and do her schoolwork. Mr. Sedore does not share in childcare responsibilities on any regular basis. She indicated that she is struggling each day to keep up with her studies, get her daughter to daycare and that the impoundment fees will deplete her savings. The situation is causing her stress and hardship.

Alternative to the impounded vehicle

18I accept that there is no public transit in Innisfil. At this time, the appellant’s college classes are fully virtual; the impoundment of the vehicle has not caused her to miss classes. At the time of the hearing, the vehicle had been impounded for 31 days. During that time, the appellant’s daughter missed daycare on two days. On the other days, she used Uber to go to and from the daycare in Barrie. The appellant’s mother owns a vehicle which she uses for her employment. On occasion, the appellant’s mother has assisted with groceries and other errands. There have been no further medical events with her daughter during the impoundment period, and the area is served by 911 emergency services. Neither the appellant nor her daughter have missed any medical appointments during this time.

19I accept that payment of the impoundment fees will deplete the appellant’s savings and that it is more money than she feels she can afford. Although this is certainly inconvenient and adds an extra burden on the appellant, I find that she has failed to establish that the impoundment of her vehicle will result in exceptional hardship. Her use of Uber and the occasional assistance she receives from her mother has permitted her to carry on with her studies and day-to-day activities. As a result, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been satisfied.

E. CONCLUSION

20For 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.