Date: 2021-07-13

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:

Rochelle Johns

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: Self-Represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference

May 7, 2021

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on May 7, 2021 to consider the appellant’s appeal of the 45-day impoundment of her 2007 Subaru Forrester (the “vehicle”). The vehicle was impounded on March 10, 2021 and was released to the appellant on April 24, 2021.

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”). The vehicle was released to the appellant prior to the hearing so my decision relates only to whether the appellant is entitled to be reimbursed for the impoundment fees she paid.

C. RESULT

3While the impoundment of the appellant’s car has caused stress and economic hardship for the appellant, she has failed to demonstrate that there is a threat to the health or safety of any person ordinarily transported by the vehicle. Accordingly, I confirm the impoundment.

D. law

4Under the Act, where a police officer is satisfied that a person is driving a motor vehicle on a highway 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 this 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.

5Subsection 50.2(3) of the Act lists five grounds on which an owner may appeal the impoundment and on which the Tribunal may order the Registrar to release an impounded 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.

6I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Act and the regulations made under the Act.

7Section 10 of O. Reg. 631/98 made 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. In order to establish exceptional hardship, s.10(1) of the Regulation requires that I consider whether no alternative to the impounded vehicle exists. 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.

8The 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, meaning more likely than not.

9Following 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

The appellant’s circumstances

10The appellant was driving the vehicle at the time that it was detained for impoundment. She was convicted of an impaired driving offence under the Criminal Code in August 2011. She completed the Back on Track program in 2017 or 2018 and believed that her driving privileges in Ontario were reinstated in 2020. She subsequently learned that, having forgotten to do the six month follow-up with the Back on Track program, her driving privileges had not been reinstated.

11The appellant has never held an Ontario driver’s licence. She is a citizen of both Canada and the United States and holds a driver’s licence from the State of New York. She has lived primarily in Ontario for about the past 20 years, but has a place to stay in New York.

12The appellant bought the vehicle in the United States in September 2020 with a small inheritance and returned to Ontario with the vehicle at that time. The appellant explained that she now understands that she is not permitted to drive in Ontario unless the vehicle she is driving is equipped with an ignition interlock device. She also explained that she must have an Ontario driver’s licence in order to have the vehicle equipped with an ignition interlock device.

13The appellant is a journeyman painter and testified that she is unable to work without a driver’s licence, needing a vehicle to travel to jobsites. She wants to move to New York, where she believes that she is permitted to drive. She indicated that she does not have a job lined up, and has not organized any interviews, but through word-of-mouth believes that there is plenty of work. As well, she must join a union to pursue this work, and must be physically present in New York in order to do so. She expressed that she wants to pursue a better life for her family and that she is unable to do so if she is unable to work.

14The appellant has experienced stress as a result of not working and does not wish to sit at home. Currently, she is supporting herself and her two children, one of whom is an adult, by way of Ontario Works. She stated that amount of the impoundment fees have caused her financial hardship and she desires to use the amount of any refunded fees to pay for her move to New York so that she can work. She has changed her life, is now living clean and sober, and wants to continue her progress.

Alternative to the impounded vehicle

15The appellant gave no evidence as to the availability of an alternative to the impounded vehicle. Nor did the appellant provide any evidence that she had considered and inquired into every reasonable option that would mitigate any threat or loss to resulting from the impoundment. In fact, at the time of the hearing the appellant had secured the release of the vehicle from the impound facility and is unable to drive lawfully in Ontario.

16Section 10(1) of the Regulation requires me to consider first whether no alternative to the impounded vehicle is available. I have considered this question but find that it is of limited relevance in this situation where the appellant has regained possession of the vehicle and is, in any event, not permitted to drive it.

Threat to health or safety of any person ordinarily transported by the vehicle

17Section 10(1) of the Regulation also requires me to determine whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle. The appellant offered no testimony about the specific uses to which she puts the vehicle that relate to her health or safety or the health and safety of anyone ordinarily transported by the vehicle. This is understandable given that she is unable to lawfully drive the vehicle.

18I accept that the payment of the impoundment fees has caused financial hardship to the appellant. I further accept that the impoundment and the matters that have flowed from the impoundment have caused the appellant a great deal of stress and that they have been an impediment to her goal of changing her life. I find to me however, that while the impoundment of the vehicle may have contributed to this burden to some degree, the essence of the problem is that the appellant is not able to lawfully drive in Ontario.

19In consequence, I find that the appellant has failed to establish that the impoundment of her vehicle will result in exceptional hardship. She is unable to demonstrate either that there is no alternative to the impounded vehicle or that the impoundment resulted in a threat to her health or safety or that of anyone ordinarily transported by the vehicle. As a result, the legal test for exceptional hardship under s. 50.2(3)(d) of the Act has not been satisfied.

F. 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.