Gemma Boyd v. Registrar of Motor Vehicles, 2021 CanLII 33613

Date: 2021-04-16

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

Between:

Gemma Boyd

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Colin Osterberg, Member

APPEARANCES:

For the Appellant: Gemma Boyd, Self-represented

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: April 13, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Gemma Boyd (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on March 25, 2021. At the time of the impoundment, the operator, the appellant’s son Jayme Boyd, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days. The appellant appeals on the ground that the impoundment will cause extraordinary hardship.

2For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ISSUES TO BE DETERMINED

3The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(c) of the Act.

4Section 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.

5Section 10(1) 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.

6If 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.

7The Tribunal is generally precluded by s. 10(2) 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) provides that the Tribunal can consider these things if the owner demonstrates the following:

(i) no alternative to the impounded motor vehicle is available;

(ii) the loss will be immediate, significant and lasting;

(iii) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(iv) the impact of the loss,

(a) 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

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

8The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

EVIDENCE AND ANALYSIS

9The Registrar of Motor Vehicles (the “respondent”) submitted into evidence, under the seal of the Ministry of Transportation, the Vehicle Record of the impounded vehicle, Notice to Registrar, Notice of Impoundment and Release, Driving Record of Jayme Boyd, Vehicle Registration for a Dodge Caravan motor vehicle owned by Calwin Boyd, and Vehicle Registration for an Infiniti motor vehicle owned by Calwin Boyd. Pursuant to ss. 49 and 210(7) of the Act, those documents were admitted into evidence and accepted, absent evidence to the contrary, for the truth of the facts contained therein. The appellant stated that she had no evidence to contradict the facts described in the documents filed, and agreed their contents were true.

10The Ministry of Transportation’s records disclose that the appellant is the registered owner of the impounded vehicle, a 2011 Dodge Durango. At the time of impoundment, Jayme Boyd was driving the vehicle while his driver’s licence was under suspension. Calwin Boyd, who resides at the same address as the appellant, is the owner of two other motor vehicles.

Exceptional Hardship

11The evidence demonstrates that the appellant has alternatives to the impounded vehicle available to her and her appeal must fail as a result.

12The appellant uses the impounded vehicle for three primary activities: 1) transporting products she sells in her online business to the delivery service she employs; 2) transporting her husband to medical appointments following his recent surgery; and 3) taking her grandchildren on outings when they visit her.

13The appellant worked for the municipalities of Toronto and Guelph for 30 years before retiring. She is in receipt of a pension as a result of that employment. After she retired, the appellant began operating a business involving the online sale of bamboo tissue products. The appellant uses the impounded vehicle to transport the products to a shipper who then arranges for delivery of the products to the appellant’s customers. The appellant must drive about 45 minutes to the shipper’s location four or five times a week for this purpose. The impoundment has resulted in the appellant being unable to fill customers’ orders and she is worried that she will lose customers as a result.

14The appellant admits that Calwin Boyd is her husband, who lives with her, owns two other vehicles, one of which is a van. She says she is uncomfortable driving the van because it has certain mechanical deficiencies that she is not used to. The example the appellant cited was that the steering wheel tends to “shimmy” when the van is driven on a highway. She gave no explanation why she or her husband have failed to take the vehicle to a garage to have this problem addressed. The appellant has occasionally driven the van in the past, but it makes her uncomfortable to do so. The other vehicle is a sportscar that is only driven in the summer and is not currently insured.

15The appellant agrees that she could use a taxi, ride-sharing service, or rented vehicle, for her business, but says that the cost of doing so would cause the business to lose profits, possibly to the point of barely breaking even. She has not investigated the cost of renting a van one day a week and doing all her deliveries at once in order to save costs. She has not considered insuring her husband’s small car and making several trips. The appellant agrees that the losses her business may experience due to the impoundment will not be permanent and that once the impounded vehicle is returned, those losses will end.

16The appellant’s husband recently had eye surgery and must attend in Mississauga for follow-up medical appointments which are approximately every two months. He is unable to drive due to the condition of his sight during recovery. The appellant says that she needs to drive her husband to his appointments.

17The appellant reiterated that she is uncomfortable driving her husband’s van to take him to his appointments. For her husband’s latest appointment, April 8, 2021, they used a ride-sharing service. His next appointment is sometime in May and, if her vehicle is still impounded, they will likely use the ride-sharing service again.

18The appellant’s grandchildren visit her on weekends on a regular basis. They are dropped off at her home, but the appellant says that she needs the impounded vehicle to drive them on outings while they are visiting. The appellant presented no evidence that she is unable to take her grandchildren on outings using her husband’s vehicle, a taxi, or a ride-sharing service.

19The appellant is able to walk to get her groceries, prescriptions, and other requirements.

Conclusion

20The appellant has failed to show that no reasonable alternative to the impounded vehicle is available to her. Her husband’s van is available to her. She may not be comfortable driving it, but that is not relevant to the test. She can rent a vehicle, hire a taxi or use a ride-sharing service for any of the activities that she says she requires the impounded vehicle for. She could insure her husband’s small car and use it for her activities, especially given that the winter season is now at an end and this car is usually insured for summer driving.

21Given that the appellant has failed to show that there is no alternative to the impounded vehicle available to her, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment will result in some inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail.

ORDER

22For the reasons set out above the impoundment of the appellant’s vehicle is confirmed.