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:
Keri-Lee Kelsey
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Keri-Lee Kelsey, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: April 12, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Keri-Lee Kelsey (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 March 13, 2022. At the time of the impoundment, the driver, the appellant’s boyfriend Kory Glen Robillard, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that the impoundment will cause exceptional hardship.
3For the reasons set out below, the impoundment of the vehicle is confirmed.
ISSUE TO BE DETERMINED
4The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
LAW
5Section 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.
6Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that to show 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.
7If the owner fails to establish that there is no alternative available, then her appeal will fail. If 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 and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.
8The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if there is no alternative to the impounded vehicle and additional criteria are met.
9The Tribunal is not able to consider whether the impoundment will result in inconvenience to a person.
EVIDENCE AND ANALYSIS
10I find that the appellant has failed to establish that the impoundment will result in exceptional hardship and her appeal under s. 50.2(3)(d) of the Act must fail as a result.
11The appellant’s evidence is that she uses on her vehicle to get her 10-year-old son to school and to his extra-curricular activities including basketball, hockey, and jiu-jitsu. She also uses her vehicle to get to work every day.
12The appellant’s son has not missed any school since the impoundment. The appellant walks her son to his grandmother’s home where he is picked up by the school van which takes him to school. The appellant’s brother has also taken her son to school a couple of times. The appellant’s son takes the school van back to his grandmother’s house after school and she takes care of him until the appellant gets home from work.
13The appellant’s son has missed one jiu-jitsu practice since the impoundment began. Otherwise, he has been able to attend his extra-curricular activities by getting rides with other parents. The appellant has also been able to borrow a friend’s vehicle to take her son to practice.
14The appellant says that her son, who has ADHD, has exhibited some behavioural issues at school which she attributes to his difficulty processing changes to his normal routine. The appellant did not allege that these issues pose a health or safety risk. The evidence presented at the hearing does not satisfy me that the appellant does not have reasonable alternatives to the impounded vehicle available with respect to her son’s transportation needs.
15The appellant has been 10 minutes late for work on a couple of days because of the impoundment but otherwise has not missed any time from work. It takes her about half an hour to walk to work and that has been her primary means of getting there during the impoundment period.
16The appellant has been able to do her shopping and other activities by walking, taking public transportation, and using taxi and ride-sharing services.
17Based on the evidence presented at the hearing, I find that the appellant has failed to show that there is no reasonable alternative to the impounded vehicle, as defined in the Act.
18Given that the appellant has failed to show that there was no alternative to the impounded vehicle, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail.
ORDER
19For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
____________________________
Colin Osterberg,
Member
RELEASED: April 18, 2022