An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1(3) of the Act.
Between:
Edward Kairys
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Edward Kairys, Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by Teleconference:
July 20, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on July 20, 2021 to consider the appellant’s appeal of the 45-day impoundment of his 2013 Ford F-150 (the “vehicle”). The vehicle was impounded on June 15, 2021.
2Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
3The appellant is appealing the impoundment on the grounds that the impoundment will result in exceptional hardship.
4In order to determine whether the impound will result in exceptional hardship to the appellant, I have applied the specific test for exceptional hardship that is set out in Ontario Regulation 631/98 (the “Regulation”) under the HTA.
5The first part of the test requires an appellant to show, on a balance of probabilities (meaning more likely than not), that “no alternative to the impounded vehicle is available.”
6Section 10 (4) sets out what an appellant must show in order to meet this first part of the test:
In order to show that no alternative to the impounded motor vehicle is available…the 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.
7If the appellant is able to show that he has no reasonable alternative to the impounded vehicle, s. 10(1) then requires the Tribunal to consider whether the impoundment will result in:
a. A threat to the health or safety of any person ordinarily transported by the motor vehicle; or
b. A threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 456/10, s. 3.
CONCLUSION
8On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that he meets the specific test to qualify for exceptional hardship as set out in the Regulation.
PRELIMINARY MATTERS
9The appellant submitted late disclosure on the day of the hearing. This information was in the form of an email and contained a list of his medication. The respondent requested the addition of a witness, not previously identified to the appellant or the Tribunal, to testify at the hearing. This individual works at the pharmacy that the appellant normally obtains his medication from.
10Neither party objected to the other’s late submissions which was past the disclosure date set out in a previous Order from the Tribunal. Given the fact that there were no objections raised, and that the testimony and evidence may be relevant in consideration of exceptional hardship, I allowed the parties to proceed with the late submissions.
ANALYSIS
11The appellant’s vehicle was impounded for 45 days after being driven by his son whose licence was under suspension for a Criminal Code conviction. The appellant testified that his son took the vehicle without his knowledge. The appellant is retired and lives in the country. He testified that this truck is his only means of transportation, however, as the hearing progressed, it became clear to me that there were other alternatives that the appellant has been able to avail himself of.
12The appellant explained that he needs his vehicle to pick up his medication from the pharmacy. The respondent’s witness who works at the nearby Shoppers Drug Mart testified that arrangements can be made for medication to be delivered to clients’ homes. Deliveries are made weekly and there is no charge for the delivery service as long as the medication is prescribed by a doctor.
13The appellant argued that his prescriptions are never filled in an expeditious manner and that lineups at the pharmacy are always long. I did not consider this relevant to his argument of exceptional hardship. The testimony provided by the witness who works at the pharmacy suggests that there is an alternative for the appellant that would ease the burden of attending the store and waiting in line.
14During the hearing, the appellant acknowledged that he has had difficulty with his son’s non-compliant behaviour in the past. He explained that he worked for over 37 years with a large car manufacturer and has owned multiple vehicles. In the past, he has tried hiding the keys from his son, but they would still be taken without his permission. The appellant did not indicate that he hid the keys from his son on this particular occasion. As a matter of fact, the appellant stated that his son was doing better and turning his life around until this incident.
15The appellant and his son live on the same property. The appellant testified that his son is currently working in Leamington, Ontario and is able to get to and from work with a taxi. He is also able to pick up groceries and other necessities for the appellant.
16I took into consideration medical appointments the appellant may have scheduled. On cross examination, the appellant stated that he cannot remember the last time he went to his doctor. He stated that most of his appointments have been over the phone with his latest phone appointment being approximately 3 months ago. He is currently being followed for diabetes and high blood pressure. I accept the fact that the appellant does have underlying medical conditions which require drug treatment. However, I am satisfied that there are ways that he can obtain this medication without the use of his impounded vehicle.
17At the hearing, the appellant stated that he is relying on taxis, his bicycle, and a friend for running errands and getting grocery when his son is unable to pick them up after work. There is also another vehicle under his name which is currently in a parking garage at his estranged wife’s home. It has been sitting idle for some time and may require some mechanical work. He explained that the cost to tow it and repair it is not feasible for him at this time. I accepted the appellant’s position on this option and weighed it in my decision. In the end, the other alternatives outweigh his inability to repair his other vehicle as he has been able to manage without a personal vehicle for the impound period.
18I am satisfied that the appellant has an alternative to the impounded vehicle. I am also satisfied that he is able to obtain his medication and groceries. There are no in-person medical appointments that he has missed and there was nothing presented to me that would confirm anything is scheduled.
19I did take into account the fact that the appellant lives in the country, however, it appears that he has still been able to get around, albeit inconveniently, to run errands and purchase essentials for himself and his home. I have no reason to
believe that there is any immediate threat to health and safety and the appellant has access to emergency services such as 911.
20In this case I find that the appellant failed to prove on a balance of probabilities that he meets the test for exceptional hardship, as set out in the Regulation, based on the alternatives available to him.
ORDER
21For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: September 23, 2021