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:
Lisa Smith
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant:
Lisa Smith, Self-represented
For the Respondent:
Leila Perierra, Agent
Heard by teleconference:
October 26, 2022
REASONS FOR DECISION AND ORDER
background
1Lisa Smith (the “appellant”) appeals the 45-day impoundment of her vehicle her 2022 Honda (the “vehicle”) on September 30, 2022. A former partner, Chad Heasler, who is subject to a Criminal Code related licence suspension, was driving the vehicle at the time of impoundment.
2The appellant’s grounds of appeal are that the impoundment will result in exceptional hardship.
ISSUES
3As per the Case Conference Report and Order, the issue to be determined is:
i. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
result
4For the reasons that follow, the impoundment is confirmed.
LAW AND ANALYSIS
Issue – Will the impoundment of the vehicle result in exceptional hardship
5The appellant appeals the impoundment of the vehicle on the basis that the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
Evidence of the respondent
6The respondent referred to the Notice to Registrar, dated September 30, 2022 in which Chad Heasler is listed as the driver of the vehicle and the appellant as the owner of the vehicle. The Notice to Registrar states the location of incident as Daniel Street, Brockville, Ontario.
7The respondent referred to the Extended Driver’s Record Search for Criminal Code Convictions of the driver, dated October 21, 2022. The Driver’s Record Search lists the driver’s licence status as Suspended, Cancelled, Unlicensed and Unrenewable due to a criminal conviction.
Testimony of the appellant
8The appellant testified that she lives with her husband and with her mother-in-law who is experiencing some health issues. She is a vice-principal at Holy Cross Catholic School in Kemptville, Ontario, a 53.5 km distance from their home. Her husband is employed as a custodian in Toledo, Ontario, a 35.2 km distance from their home. As well as the vehicle under impoundment, the husband owns a truck as well as a motorcycle.
9The appellant provides emotional support to her 9 year old granddaughter, Nala, who lives a distance away with her aunts. Nala’s father, the appellant’s son, is often away with the Brockville Reserves, and her mother, the appellant’s daughter in law, committed suicide in 2020. The appellant has missed visits with her granddaughter due to a lack of the vehicle.
10The appellant has also missed five days of work since the impoundment, one of which was a ‘work from home’ day and the others were counted as sick days. Other than the missed days, she has used her husband’s truck when weather permits him to drive his motorcycle to his workplace. As well, she has used her parent’s work vehicle when it is available. She advised that she is reluctant to request an unpaid leave of absence from her employer as the request may jeopardize her employment.
11The appellant testified that she has been employed in the education field for 16 years and that this is her first year as vice-principle at Holy Cross Catholic School. She submitted an email from her employer advising of their support of her situation.
12The appellant testified that her husband gets the groceries, and that her personal needs are being met. She advised that she is receiving medical services for her mental health and has received these services via telephone during the period of the impoundment of the vehicle. She also testified that 911 services are available in her area if they are required.
13In her Notice of Appeal, the appellant advised that she has enquired as to the cost of renting a vehicle but found the cost prohibitive. She advised that the “additional 3507.52 for a rental, the impoundment fees and the biweekly purchase of the [vehicle] will cause great hardship with respect to taking from the savings for my granddaughter and future care of aging parents.” In a statement from the appellant’s husband, Clint Smith, he confirms that the “costs of the impoundment is months of costs that [the appellant] usually covers for our granddaughters, including saving for their future education”.
Analysis
14Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. Further, section 10 (4) of the Regulation puts the burden of proof on the owner of the impounded vehicle to demonstrate that every reasonable alternative 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 make to do without the impounded vehicle.
15Sections 10(2) and 10(3) of the Regulation prohibit the Tribunal from considering financial or economic loss or loss of education in determining whether exceptional hardship exists, unless the appellant is able to demonstrate that there is no alternative to the impounded vehicle.
16The appellant testimony is that she has access to her husband’s vehicle as well as her parent’s vehicle for transportation to and from her employment. The evidence also discloses that finances are available for a rental vehicle if necessary. While these options are not ideal, the evidence does establish that there are reasonable alternatives to the impounded vehicle. The evidence does not support a finding of exceptional hardship. Pursuant to s. 10 of the Regulation, my finding that there are alternatives to the impounded vehicle renders it unnecessary for me to consider the other factors set out in the Regulation.
ORDER
17On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Jeffrey Campbell, Vice Chair
Released: October 31, 2022