Date: 2022-07-27

Tribunal File Number: 14130/MVIA

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Jessica Rodgers

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Jessica Rodgers, Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference: July 13, 2022

REASONS FOR DECISION AND ORDER

background

1Jessica Rodgers (the “appellant”) appeals the impoundment of her 2016 Dodge motor vehicle (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) on June 11, 2022 for 45 days. At the time of impoundment, someone other than the appellant was driving the vehicle (the “driver”). The driver’s licence was suspended at the time of impoundment.

2The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the licence of the driver of the vehicle was not under suspension, and that the impoundment will result in exceptional hardship to her. Specifically, she submits that she needs the vehicle for her employment, to take her children, aged three and five years, to daycare, to obtain groceries for herself and the children, and in case of an emergency. The appellant also submits that the impoundment fees will cause her financial hardship.

ISSUES

3The first issue to be determined is whether the appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act.

4The second issue to be determined is whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.

result

5I find that the appellant’s evidence fails to establish that she exercised due diligence and that the impoundment will result in exceptional hardship. The impoundment of the appellant’s vehicle is confirmed.

LAW AND ANALYSIS

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (c), that the appellant exercised due diligence and on ground (d), that the impoundment will result in exceptional hardship.

Due Diligence

8To succeed on this ground of appeal, the appellant must show that she took reasonable steps to determine that the licence of the driver was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

9Based on the appellant’s admissions, I find that the appellant did not take reasonable steps, or any steps at all, to determine that the driver’s licence was not suspended and was valid. I find that the appellant has failed to establish, on a balance of probabilities, that she exercised due diligence in attempting to determine that the driver’s licence was not under suspension when it was detained in order to be impounded within the meaning of s. 50.2(3)(c) of the Act.

10The appellant testified that she and the driver were in a romantic relationship, and she did not ask him about the status of his driver’s licence. In cross-examination the appellant admitted that she had no conversations with the driver about the status of his driver’s licence and did not do an online check or a telephone check with the Ministry to verify the status of his licence. The appellant said that she assumed the driver had a valid driver’s licence because he had been driving a vehicle for his work and he told her he was able to drive which she took to mean that he had a valid driver’s licence.

11The appellant’s testimony was consistent with her Notice of Appeal in which she stated that “It was my understanding that when I gave Taylor permission to use my vehicle that his license was in good standing” which confirms that the appellant did not take steps to verify the status of his driver’s licence.

Exceptional Hardship

12I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

13Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that we must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that to show that there is no alternative to the impounded vehicle:

…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.

14If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) 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.

15I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

16Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

17The appellant testified that although she missed two to three days of work following the impoundment, she was able to take those days as personal days and was compensated for them. Her employer has allowed her to work from home during the impoundment. However, this is inconvenient for her because her two young children are also at home. Other than having to miss some meetings, the appellant’s work has not been affected.

18The appellant testified that she enrolled her two children in a summer camp program approximately two weeks after the impoundment of her vehicle and they were to start attending the summer camp July 4, 2022. She had to pay for the daycare’s summer camp program, even though her children cannot attend, to secure places for them at the daycare after the summer, during the school year. The appellant testified that because of the impoundment, her son had to miss out on the remainder of his school year, her daughter will miss out on preschool learning and crucial socialization and they both will miss out on the summer camp program operated by their daycare. The appellant testified that renting a vehicle is too expensive for her, there is a waiting list for rental vehicles at some rental agencies and she submitted a written estimate to rent a vehicle in support of her testimony.

19The appellant testified that after her vehicle was impounded a co-worker picked up groceries for her on one occasion but now she has to walk to the grocery store with her children. The grocery store she has been going to is more expensive and is approximately 1.8 kilometers or approximately a 25 minute walk from the appellant’s home. The appellant testified that although her parents both work full-time and have not been able to help her with grocery shopping, they may soon come to her home and help her with grocery shopping which may get her through to the end of the impoundment period.

20The appellant testified that her children have no ongoing medical issues and that she has been able to reschedule dental and medical appointments until after the impoundment period is over. The appellant confirmed that she has access to 911 services in the event of an emergency.

21In addition, the appellant testified that if she has to pay the impoundment fees to obtain release of her vehicle, this will be a large amount of money and will be a financial hardship for her as a single mother.

22While the appellant has established that the loss of use of her vehicle during the impoundment period is inconvenient for her and the children, inconvenience is not a factor which the Tribunal can take into consideration.

23I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

24I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period.

25The appellant has received accommodation from her employer to work at home during the employment period which, although challenging with two small children at home, has allowed her to continue her employment.

26The appellant has been able to obtain groceries for her family with the help of others and by walking to a grocery store with her children.

27Dental and medical appointments have been rescheduled to after the impoundment period expires. The appellant has access to 911 emergency services in the event of an emergency.

28With respect to the summer camp that the children will not be able to attend even though the appellant has paid for it, the appellant chose to book and pay for the summer camp several weeks after the impoundment had taken place. There was more than one purpose for doing so, namely to ensure the children had a place at the daycare starting in the fall. Incurring the cost of the summer camp was a choice that the appellant made after the impoundment and this cost was not a direct result of the impoundment.

29As a result, I find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

30Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.