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:
Skyler Griswold Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Evelyn Spence
Appearances:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by Teleconference:
January 14, 2022
DECISION AND ORDER
A. Overview
1The appellant, Skyler Griswold, appeals the 45-day impoundment of her motor vehicle. On December 10, 2021 the vehicle was impounded because it was being driven by a friend, whose driver’s licence was under suspension as a result of a Criminal Code conviction.
2The appellant requests that the Tribunal make a finding that the impoundment be set aside and the Registrar of Motor Vehicles (the “Registrar”) be ordered to release the vehicle.
B. ISSUE AND DECISION
3The issue to be decided is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H8 (the “Act”).
4For the reasons that follow, the impoundment is confirmed. I find that the impoundment does not result in exceptional hardship.
C. LAW AND ANALYSIS
5The intent of the Act is to promote public safety by preventing persons whose driver’s licenses are suspended for certain reasons from operating motor vehicles. Pursuant to s. 55.1 of the Act, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for various Criminal Code-related offences.
6The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2 of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the period of impoundment.
7There are limited grounds on which an owner may appeal an impoundment. The appellant bears the burden of proving that they fall within one of the grounds of appeal set out in s. 50.2(3) of the Act.
8In this case, the single ground listed in the appellant’s Notice of Appeal and identified in the case conference report and order was that the impoundment will result in exceptional hardship.
a) Exceptional Hardship
9Section 10 of Ontario Regulation 631/98 (the “Regulation”), made under the Act, sets out the criteria that the Tribunal may consider, and others that it may not, in determining whether an impoundment will result in exceptional hardship. The test for exceptional hardship in the impoundment context is difficult to meet.
10Pursuant to s. 10(1) of the Regulation, the Tribunal’s first step, in assessing exceptional hardship, is to consider whether an alternative to the impounded motor vehicle is available. If the Tribunal finds that there is an alternative to the impounded vehicle, then the Tribunal need not consider any other requirements – the ground of exceptional hardship will have failed. Pursuant to s. 10(2)(a), under no circumstances can the Tribunal consider “inconvenience to any person” in determining exceptional hardship.
The appellant’s circumstances
11The appellant is employed full-time at a dispensary, where she works during the week. She is also enrolled as a student in a full-time personal support worker (PSW) program, which is held online four evenings a week. The PSW program includes a requirement that students participate in an unpaid practicum at a long-term care facility (the “placement”), which takes place on weekends.
12The appellant testified that she relies on Ontario Student Assistance Program (OSAP) funding and income from her employment at the dispensary to support herself and her two children. She expressed genuine concern that if she is not able to complete her placement in the very near term, she risks losing her OSAP funding and may not be able to complete the PSW program.
13The appellant stated she is required to arrive at her placement by 6am every weekend, which necessitates that she leave her house by 5am. She stated that public transportation does not facilitate such an early arrival, and explained that since losing her vehicle, she has missed four weekends (roughly 80 hours) of placement work. This includes one weekend she missed because she was ill and self-isolating.
14Similarly, the appellant advised that, since the impoundment, she has only been able to work three (3) shifts at the dispensary. She alleged this was, in part, due to lack of transportation but also that she was unable to work for a week due to illness. The dispensary is a fifteen-minute drive from her home, and the appellant stated there is no public transportation that would take her directly from home to work.
15The appellant has asked her peers from the PSW program for rides to her placement and has availed herself of this option. She testified, however, that her peers can never drive her the full distance to or from her placement, and that on one occasion she needed to take a bus to complete the journey. She has not contemplated taking a taxi or Uber to attend her placement because of the cost, which she stated would exceed $100. The appellant testified she could not justify spending so much to attend an unpaid placement, as it would “take food out of [her] children’s mouths”. The appellant’s grandmother lives close by and has driven her to the dispensary for one of her shifts.
16The appellant did not provide any evidence that her two children have been impacted by the impoundment. Her two-year old child is cared for at a daycare once-a-week and her nine-year old attends a nearby school. She confirmed that her family lives close enough to her older child’s school that they can walk.
17The appellant has had groceries delivered to her and did not suggest that the family’s immediate or essential needs have been wanting during the impound period.
Alternative to the impounded vehicle
18The legal threshold for confirming whether there is an “alternative to the impounded vehicle” is not whether the appellant owns or has access to a second vehicle. Instead, s. 10 (4) of the Regulation sets out what an appellant must show in order to meet this initial prong of the test, as follows:
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.
19Sections 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.
20In this case, I accept that the impoundment has been costly for the appellant and very difficult to manage, particularly with the early hours required by her PSW placement and the other many demands on her time. However, the appellant’s evidence is that there are alternatives to the impounded vehicle, in that Ms. Griswold has been able to avail herself of rides on public transportation and from peers and family, on occasion. While these modes of transport may not be ideal, they are available options which could, if used, help mitigate the threat or loss of her employment and standing in her education program.
21Given that I have found there are alternatives to the impounded vehicle available, I do not need to consider the other provisions of s.10(1) of the Regulation.
D. ORDER:
22Pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment of Ms. Griswold’s motor vehicle. The vehicle shall remain at the impound facility for the remainder of the impound period.
LICENCE APPEAL TRIBUNAL
____________________________ Evelyn Spence, LL.B. Member
Released: January 22, 2022.