Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension
Between:
Jaffa Aminov
Appellant
and
Registrar of Motor Vehicles
Respondent
Reasons for Decision
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
S. Kapur, agent
Heard by teleconference:
April 5, 2022
Date of Order
April 6, 2022
Overview
1On February 25, 2022, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.1(5) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section requires a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ended on April 11, 2022.
2The appellant appeals the impoundment on the ground the impoundment caused exceptional hardship. Following the hearing, on April 6, 2022, I issued a decision granting the appeal and ordering the respondent to release the appellant’s motor vehicle with reasons to follow. These are those reasons.
Issue
3The issue to be determined is whether the impoundment resulted in exceptional hardship.
The Law
4Section 50.2 of the HTA allows only a few limited grounds on which an owner may appeal, one of which is exceptional hardship. The onus is on the appellant to establish one or more of those grounds.
5Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.
6Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
7Section 10(4) sets out what an appellant must show in order to meet this initial prong of the test:
(4) 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.
8Only if this initial step of the test for exceptional hardship is met, may I then consider whether on a balance of probabilities, the impoundment will result in:
a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
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.
9Additionally, the Regulation stipulates that unless the appellant demonstrates, among other things, that there is no alternative to the impounded vehicle, the Tribunal is prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship.
Evidence and Analysis
10The respondent presented documentary evidence which established that:
a) the appellant is the registered owner of the impounded vehicle
b) on February 25, 2022 the vehicle was stopped while being driven by a person whose licence was suspended because of a Criminal Code conviction
c) the vehicle was impounded pursuant to s. 55.1 of the HTA
d) the vehicle was eligible for release on April 11, 2022.
11The appellant did not take issue with any of the documentary evidence filed.
12The appellant testified and provided some considerable evidence as to her current difficult life circumstances. Just prior to the day her car was impounded she advised she was being stalked and had become very frightened to the point where her friend sent a male acquaintance to stay with her. The male was previously unknown to her. The two of them left her place to get something to eat and while in a restaurant she became lightheaded as she is diabetic and her blood sugar was low. Given her state, she allowed the male acquaintance to drive her vehicle and it was during this time the vehicle was stopped by police, who determined the driver was both suspended because of a Criminal Code conviction and, additionally, had not been licenced for several years. The vehicle was subsequently impounded.
13The appellant testified she is presently the sole caregiver for her mother who suffers from a constellation of physical and mental health issues. The appellant had been looking after her father as well until his untimely and tragic death a few months before her vehicle was impounded. Her testimony about her role vis a vis her mother was supported by a letter from the family’s doctor who has looked after the family for 20 years. The doctor confirmed the appellant was “instrumental “in providing care for her mother who is “significantly disabled. She opined it was “essential” that the appellant have access to her car otherwise “she cannot support her disabled mother”.
14The appellant also testified she suffers from several health issues, both physical and mental. She said she has significant mobility issues which affect her ability to stand or walk for long periods of time. Although she has a sister, the sister lives a significant distance away and is not involved in the care of her mother.
15The appellant advised she is not presently employed and used what savings she had to pay for her father’s funeral. Although the appellant has access to a bus line, it is extremely painful for her to take the bus given her back and sciatica nerve issues. The appellant admitted to taking Uber on a couple of occasions during the impoundment but only because her sister had lent her the money and the sister was not able to do that any longer. The appellant also testified that she has significant difficulty with anxiety and so using an Uber or taxi, even if she could afford it, is not something that can be undertaken without a great deal of difficulty and discomfort. She testified that due to a past traumatic incident she does not feel safe in a stranger’s vehicle.
16At first blush it appears that the appellant is not able to meet the threshold required by section 10(4), that is satisfying me that there is no alternative to the impounded vehicle as she has a bus line and Uber available to her and has in fact relied on Uber during the impoundment. I do not find it necessary to recount every detail of the evidence the appellant gave, as much of it was of a very personal and troubling nature. However, having listened intently to the appellant while she vividly outlined her current situation, I am satisfied that while other means of transportation might be available in the normal course, given the appellant’s unique situation, she does not, in her present circumstance, have reasonable alternatives to her impounded vehicle. Moreover, while she could theoretically walk, I am satisfied that, due to her various medical conditions, that alternative would cause so much stress on the appellant that I do not consider it to be a reasonable alternative.
17I am also satisfied that the appellant demonstrated, on a balance of probabilities, the impoundment will result in a threat to the health or safety of a person ordinarily transported by the motor vehicle. As supported by the family doctor the appellant is reliant on her vehicle to assist in the daily care of her mother.
18The appellant’s circumstances as outlined by her during her testimony were compelling and satisfied me that she had met her onus of proving on a balance of probabilities that the impoundment had resulted in, and would continue to result in, exceptional hardship.
Order
19For the reasons set out above, I grant the appellant’s appeal and order the respondent to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: April 29, 2022