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:
Rachel Fishbach
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Rachel Fishbach, Self-represented
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: March 25, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Rachel Fishbach (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 February 28, 2022. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded and that the impoundment will cause exceptional hardship.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
4The first issue to be determined in this appeal is whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act.
5The second issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
EVIDENCE AND ANALYSIS
6The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle;
(2) on February 28, 2022, the police discovered the impounded vehicle being driven by Sean Spehar; and
(3) Mr. Spehar’s licence was under suspension at the time of the impoundment as the result of an impaired driving conviction.
The vehicle was not stolen
7The appellant and Mr. Spehar were living together in St. Thomas at the time of the impoundment. On the day of the impoundment, at approximately 5:00 pm, Mr. Spehar and the appellant were in their basement bedroom and Mr. Spehar told her that he needed to go into London to help a friend. He said that either the appellant could drive him, or he would take her car and drive himself. The appellant told Mr. Spehar that she had to make supper for her children and could not drive him at that time. She did not say explicitly whether he was allowed to drive her car. Her car keys were in her purse in the bedroom where she left Mr. Spehar and she knew that he was aware of their location. She did nothing to prevent Mr. Spehar from having access to the keys when she knew he intended to take them and to use her car.
8The appellant did not see Mr. Spehar leave the house but noticed that he and the car were gone a short time later. The appellant says she tried to get in touch with him but was unable to do so. It was very late that night when Mr. Spehar contacted the appellant and told her that he had been arrested and the vehicle impounded. The appellant acknowledges that she never suggested to anyone that the vehicle had been stolen until after the Case Conference in this appeal. She then wrote to the St. Thomas police and asked whether Mr. Spehar would be charged with the theft of the vehicle. She has not received a response to that enquiry.
9I find that the appellant has failed to prove that the vehicle was stolen. Mr. Spehar told the appellant he was going to use the vehicle if she would not drive him. The appellant declined to drive but did nothing more to either prevent Mr. Spehar from driving or to let him know he did not have her consent to drive. Instead, she left him alone with the keys to the vehicle. The appellant did not notify police when she saw that the vehicle was missing and did not allege that the vehicle was stolen in her Notice of Appeal. The appellant first alleged that the vehicle may have been stolen after the Case Conference. The evidence presented is consistent with the appellant having consented to Mr. Spehar’s use of the vehicle and I find that the appellant’s appeal on the ground that the vehicle was stolen must fail.
Exceptional Hardship
10Section 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.
11Subsection 10(1) requires the Tribunal to first 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.
12If the owner does not establish that there is no alternative available, then her appeal on the ground of exceptional hardship will fail. The evidence presented at the hearing shows that the appellant has reasonable alternatives to the impounded vehicle.
13The appellant has two children ages 8 and 12. They are within walking distance to school. The impoundment has had no impact on their attendances at school.
14The appellant’s youngest child has appointments in St. Thomas for educational assessments that will take place in the next two weeks and the appellant intended to use her vehicle to take him to those assessments. The assessments are to take place at the opposite end of St. Thomas to where the appellant lives and not within walking distance. The appellant says that, if her vehicle is not released, she will take her child to the assessments by taxi or Uber. Her child will not miss the appointments if her vehicle remains impounded.
15The appellant is employed with Fanshawe College in London. She works in the human resources department doing payroll and has worked there for about 12 years. The appellant is currently working from home, so her employment has not been affected by the impoundment. She is concerned that if her employer asks her to start coming in to work, she will have no way of getting there from St. Thomas. However, the appellant has had no indication from her employer that she will have to start coming into London and it is likely that she will be able to continue working from home until the impoundment period expires.
16With respect to shopping, the appellant says that she has been having her groceries and other supplies delivered to her home while the vehicle has been impounded. She plans to continue doing this until her vehicle is released.
17The appellant says that some of her other usual activities have been impacted by the impoundment, but none rise above the level of inconvenience. For example, she says that she would normally drive her children to their friends’ houses for visits and now they either walk or get a ride from someone else. The appellant could think of no activities which she or her children have had to forgo as the result of the impoundment.
18The evidence satisfies me that the appellant has alternatives to the impounded vehicle available to her. She is working from home; she intends to take her child to his educational assessments by taxi or Uber; she is having her groceries and other supplies delivered; and her children are getting to school and to their friends’ houses by walking or getting rides with others.
19I find that the appellant has not demonstrated that there are no alternatives to the impounded vehicle available, and her appeal under s. 50.2(3) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.
ORDER
20For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
Released: March 30, 2022