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(3) of the Act.
Between:
Shaylene Unilowsky
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicators: Laura Goulet, Member; Colin Osterberg, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference:
May 12, 2022
DECISION AND ORDER
Overview
1The appellant, Shaylene Unilowsky (the “appellant”), appeals the 45-day impoundment of her motor vehicle. On April 10, 2022 the vehicle was impounded because it was being driven by her former spouse, whose driver’s licence was under suspension as a result of a Criminal Code conviction.
2The appellant alleges that the impoundment will cause exceptional hardship, and she requests that the Tribunal set aside the impoundment pursuant to s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle.
3For the reasons that follow, the impoundment is set aside, and the Registrar is ordered to release the appellant’s motor vehicle.
ISSUE
4The issue to be decided is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Act.
LAW, EVIDENCE AND ANALYSIS
5The respondent presented evidence which establishes that:
a. The appellant is the owner of a motor vehicle, a 2014 Chevrolet CZT;
b. On April 10, 2022, the police discovered the appellant’s vehicle was being driven by the appellant’s former spouse, Ali Kutiy; and
c. Mr. Kutiy’s driver’s licence was under suspension for a criminal conviction at the time the vehicle was being driven by him.
Exceptional Hardship
6Section 10 of Ontario Regulation 631/98 (the “Regulation”), made under the Act, sets out the criteria that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
7Subsection 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.
8If 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.
9Also, pursuant to s. 10(3) of the Regulation, if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may consider financial, economic, education, or employment losses if those losses are immediate, significant and lasting. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
10For the reasons which follow, we are satisfied that the appellant has demonstrated that there are no reasonable alternatives to the impounded vehicle available to her.
11The appellant is a single mother of three daughters under the age of eight. Her family lives in Alberta and she has a limited support system in Ontario. The appellant has mental health issues for which she is receiving various forms of therapy and counseling.
12The appellant has a total monthly income of approximately $2,500.00 from Ontario Works and a Child Tax Credit. From this, she pays for food, utilities, car insurance, gas, and other necessities. She does not receive more than nominal child support.
13The appellant attends the Youville Centre / St. Nicholas’ Adult High School (the “Centre”), which is an accredited child and youth mental health agency, where she is completing her high school education and where she receives mental health services. Her youngest daughter attends daycare at the Centre. The appellant will be attending Algonquin College in the fall. The appellant’s two older children take a school bus to their elementary school. The time that the bus arrives to pick them up is undependable and the bus is often cancelled.
14The appellant starts school at 9:30 a.m. and her daughter’s daycare starts at 10:00 a.m. Her daughter’s daycare is subsidized, and she is only allowed to miss 30 days yearly otherwise she loses the subsidy.
15The appellant says that the impoundment has resulted in her missing a significant amount of time from school. This is because she does not have a means of getting her older two children to school on the days that the school bus is cancelled and she does not have time to take them to school by public transportation and get to her own school in time. She cannot take the bus earlier because she would then have to leave her two older daughters by themselves either waiting for their bus or waiting for their school to open. She believes this would be unsafe. She cannot afford taxis or ride-sharing services.
16A letter from the Centre presented in evidence states that: “Without the use of her vehicle, [the appellant] and [her daughter] have not been able to consistently attend school or childcare which has impacts on both mom and child’s education and access to support services.”
17The appellant has paid for ride-sharing services to attend school and for some necessary medical appointments for her daughters, but she cannot reasonably afford to do this on a regular basis without affecting her ability to pay for food and other necessities.
18The appellant testified that she is no longer able to take her children to the community centre and other extracurricular activities as she cannot afford the transportation. She says that the parks in her neighbourhood are unsafe. The appellant has also missed some therapy sessions and parenting groups at the Centre, in addition to her classes.
19The appellant says that after the vehicle impoundment she had to cancel counselling sessions she was attending with her wholistic trainer as she was unable to afford the transportation to Westboro. Prior to the impoundment, she had been attending sessions for spiritual wellness twice weekly.
20A letter dated May 2, 2022 from the appellant’s psychotherapist says that the loss of the appellant’s vehicle has impacted her emotionally, mentally and physically as a result of the financial strain, her inability to access her daily self care routines and activities with her daughters.
21We are satisfied that every reasonable option has been considered and inquired into and that there are no reasonable alternatives to the impounded vehicle available. The appellant is of very low income and would have to use funds that should be used for food and other necessities in order to pay for transportation to school, counselling and other wellness activities. This is not reasonable.
22We are satisfied that the impoundment will result in a threat to the health or safety of the appellant, a person who is ordinarily transported by the motor vehicle. There is evidence that the loss of her vehicle has negatively impacted her emotionally, physically, and mentally.
23We are also satisfied that the impoundment will result in loss of education or training or educational or training opportunities to the appellant which are likely to be immediate, significant and lasting.
24Finally, we are satisfied that the impact of the loss will be upon a person other than the person whose driving while his or her licence was under suspension resulted in the impoundment of the motor vehicle and is not a result of a loss by the suspended driver for the purposes of s. 10(3)(d) of the Regulation.
25Taking all of the evidence into consideration, we conclude that the continued impoundment of the appellant’s vehicle will result in exceptional hardship as defined in the Act and Regulation. There are no reasonable alternatives to the impounded vehicle and the impoundment threatens the health and safety of the appellant.
ORDER:
26For the reasons set out above and pursuant to s. 50.2(5) of the Act, we order the Registrar to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
____________________________ Laura Goulet, Member
____________________________ Colin Osterberg, Member
Released: May 17, 2022