Janis Goodmurphy v. Registrar of Motor Vehicles, 2021 CanLII 48161

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-05-25

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:

Janis Goodmurphy Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: Self-represented For the Respondent: Stephen Grootenboer, Agent

Place and date(s) of hearing: By Teleconference April 22, 2021

REASONS FOR DECISION

A. Overview

1The appellant appeals the 45-day impoundment of her single-seater Polaris Sportsman all‑terrain vehicle (the “ATV”). The vehicle was impounded on March 25, 2021 and is due to be released from impoundment on May 9, 2021. The appellant’s adult son was driving the ATV at the time it was impounded. She appeals on the ground that the impoundment of the ATV is causing excessive hardship.

B. ISSUES

2The sole issue to be determined is whether the impoundment of the ATV is resulting in exceptional hardship to the appellant within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

C. RESULT

3I have found that the appellant has established that the impoundment is resulting in exceptional hardship to her. Accordingly, I order the Registrar to release the ATV to the appellant.

D. LAW

4Under 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 with respect to any other motor vehicle then owned by the owner of the vehicle being impounded.¹

5Subsection 50.2(3) of the Act lists five grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. In this case the applicant relies on exceptional hardship, the fifth ground.

6The appellant bears the burden of proving one of the grounds of appeal set out in Subsection 50.2(3) of the Act, on a balance of probabilities.

7Following 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

8The appellant lives in a rural area about 50 kilometers north of Belleville. The nearest town is Tweed, about 11 kilometers from her home. The appellant’s property is slightly in excess of two acres and they raise chickens for both eggs and meat. She is 75 years old and lives with her husband who is 85 and her adult son, Sean. Her husband suffers from dementia and has heart, lung and ambulatory issues. The appellant is unable to go to town to run errands unless she has a personal support worker to care for her husband. At this time she is provided with only two hours per week of this support, one hour on each of Monday and Friday.

9On the day the ATV was impounded, she was feeling quite unwell and asked her son Sean to go to Tweed to pick up her medications. The Trans Canada Trail runs adjacent to or through their property and they have purchased a pass to permit them to operate the ATV on the Trans Canada Trail. As well, the ATV is licensed and the appellant carries insurance on the ATV. It is not in dispute that Sean’s driver’s licence is under suspension. However, the appellant alleges that Sean is permitted to drive the ATV on the Trans Canada Trail as it is not a highway, as defined under the Act. Rather than parking the ATV at a point on the Trans Canada Trail closest to the pharmacy in Tweed and walking the additional 500 yards, Sean drove the ATV all the way to the store, crossing or driving on a highway. At that point, a police officer stopped Sean and, upon learning that Sean’s driver’s licence was under suspension, detained the ATV for impoundment.

Is the Impoundment Causing Exceptional Hardship?

10The appellant argues that the impoundment of the ATV will result in exceptional hardship to her. She requires the ATV to do various chores around the property including clearing and hauling fallen limbs and similar debris, filling bird feeders, tending to the gardens on the property, hauling gravel when needed and, most importantly, caring for the chickens, which require food and fresh water daily and fresh bedding materials weekly.

11She said that the chickens are a blessing, particularly during the pandemic, as she is not required to expose herself to potential infection while grocery shopping. Also, in the event of her husband needing more care, she is always well provisioned with chicken in the freezer and a supply of eggs.

12Section 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.

13Section 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.

14If 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 or safety of any person ordinarily transported by the vehicle, a threat to public health and safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.²

15The 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 of an education or training opportunity to any person. 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).

16The Tribunal can never consider whether the impoundment will result in inconvenience to a person.³

Is there an alternative to the impounded vehicle, the ATV?

17The Agent for the Registrar (the “Agent”) argued that the appellant owns another vehicle, a 2019 Subaru Forester, and produced a document from the Ministry of Transportation to that effect. The appellant does not dispute that she owns the Subaru but asserts that the Subaru is not a suitable substitute for the ATV in relation to her daily chores and the work required around the property.

18The appellant testified that she purchased the ATV for her own use and described it as “just perfect for me”. She said that the ATV is small with just two pedals, easy to operate and safe, having a wide stance. She uses it every day for her chores around the property. The ATV has been fitted with a small trailer into which she can place water, feed for the chicken and straw. She uses the ATV to cross the fields to get to the structure where the chickens are housed, a distance of almost a kilometre.

19The chickens need daily care and regular protection from racoons and coyotes. At the time of the hearing, 1:30 p.m., she had not yet been able to provide fresh food and water to the chickens as her husband required more attention than usual that day. A nurse attended to treat his ulcerated wounds resulting from his diabetes and he was taken to Tweed for further treatment.

20The feed for the chickens come in bags weighing 40 kilograms each. The appellant is unable to lift a feed bag, but is able to transfer an amount of feed into buckets which she puts in the trailer and hauls to the chickens. She follows the same routine to replenish the chickens’ fresh water each day. Once a week, she rakes out the old straw in the chickens’ quarters and replaces it with fresh straw. She takes the fresh straw in the trailer and, again, uses the trailer to dispose of the spent straw.

21The appellant testified that the Subaru is not suitable for this work. While the Subaru has, to date, been able to negotiate the rutted terrain on the property, there is concern in this regard and she finds the Subaru more difficult to drive. As well, the storage areas of the Subaru are at a greater height, which would require the appellant to lift heavy items, which she finds, at best, difficult.

22The Agent questioned the appellant about borrowing a similar vehicle from a neighbour. She testified that she has good neighbours but that the vehicles owned by some of her neighbours are not licensed and that some neighbours would not agree to lend a machine to her. The appellant testified that there is no rental centre in Tweed to rent a similar vehicle. As well, she enquired at a dealership in Tweed and was told that they “don’t do loaners”. She expressed that she had exhausted the possibilities in her location.

23Based on the manner in which the appellant uses the ATV, I am satisfied that the Subaru is not a reasonable alternative to the ATV. As well, the appellant has demonstrated that she has considered every reasonable alternative to the ATV, none of which has borne fruit. The appellant is responsible for the well-being of the chickens. Under the circumstances, using the Subaru or doing without the ATV during the impound period will not adequately mitigate the loss or threat to the appellant resulting from the impoundment of the ATV. In consequence, I find that there is no reasonable alternative to the ATV.

Is the impoundment of the ATV a threat to the health or safety of any person ordinarily transported by the ATV?

24Having found that there is no alternative to the impounded vehicle, s. 10(1)(a) of the Regulation requires me to consider whether the impoundment poses a threat to the health or safety of any person ordinarily transported by the ATV. There is no question that the appellant is a person ordinarily transported by the ATV.

25The appellant testified that she has had three surgeries on her feet in the past three and a half years. The surgery on her right foot was successful, but the surgery on her left foot had to be redone and the foot is “still not good”. She stated that she suffers some impairment to her mobility, is prone to falls, and that her balance is not as good. She also testified that she is at a real disadvantage getting her chores done when she does not have the use of the ATV and expressed that she is exhausted from the extra work that this is causing. She believes that when one lives in the country, one needs to be self-sufficient.

26The appellant’s age and physical condition is sufficient for me to conclude that the impoundment is a threat to the appellant’s health. However, it is also clear that the impoundment of the ATV is causing the appellant increased stress. This stress, in addition to the stress that she bears daily in caring for her ailing husband, may well become unmanageable. I find that the impoundment is a threat to the appellant’s physical and mental health and well-being. The appellant has established that the impoundment will result in exceptional hardship.

F. CONCLUSION

27For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I order the Registrar to release the ATV to the appellant.

Footnotes

1. 1O. Reg. 631/98, s. 1; Highway Traffic Act, R.S.O. 1990, c. H. 8, s. 55.1(3).
2. 2O. Reg. 631/98, s. 10(1).
3. 3O. Reg. 631/98, ss. 10(2)(a), 10(3).