An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1(3) of the Act.
Between:
John Siddall
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant:
John Siddall
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
July 13, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant appeals the 45-day impoundment of his vehicle that is used by his daughter to get to work in Toronto and by his wife for general family needs. The vehicle, a 2008 Kia, was impounded on June 8, 2022. Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
2The appellant is appealing the impoundment on the ground that the impoundment will result in exceptional hardship.
3The vehicle was in the possession of the appellant’s daughter, Megan Siddall at the time of the impoundment and was being driven by Viator Garcia, whose licence was under a criminal code suspension. Ms. Siddall was aware that Mr. Garcia’s licence was currently under suspension, but because she was feeling exhausted, she let Mr. Garcia drive the vehicle for a short distance on the streets of Toronto.
RESULT
4On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship.
ANALYSIS
5Appeals of long-term impoundments, and the Tribunal’s jurisdiction to consider those appeals are set out in s. 50.2 of the Act. There are limited grounds of appeal that I may consider, including the ground relied on by the appellant “that the impoundment will result in exceptional hardship.” The factors I may consider in determining exceptional hardship are further constrained by the provisions of s. 10 of O. Reg 631/98 (“Regulation”). The s. 10 provisions have a precondition. There must be no alternative to the impounded vehicle. Thus, I must first consider whether alternative modes of transportation exist for the appellant, or more particularly Ms. Siddall as the primary user of the vehicle and Mrs. Siddal, Mr. Siddall’s spouse.
6Mr. Siddall has two vehicles in his possession, both Kias. While the Registrar’s records show four vehicles, two are old registrations and Mr. Siddall testified that he has not owned either vehicle for many years. The Registrar did not take issue with this evidence. Of the two vehicles, one has fold-down seats and Mr. Siddall needs it for work to pick up materials. He must travel from his home in Orillia to Lake of Bays for work each day so that vehicle is not available for his wife’s, Ms. L Siddall’s, use. She relied on the impounded vehicle when it was not being used by Ms. M. Siddall.
7Ms. M. Siddall lives and works in Toronto. Due to COVID, her income had declined in the last couple of years. She relied on her father to provide a car for her to get to and from work. Just before the impoundment she had started a new job which required her to undergo intense training in the neighbourhood of Pearson Airport. There were strict achievement requirements to successfully complete the training course. Lateness, for instance, led to a notation of “needs improvement,” and two such notations would result in failure. She received one “needs improvement” for lateness on the day of the impoundment. She was, thus, walking a tightrope for the balance of the course, creating a high level of anxiety. Despite this tension, she successfully completed the course on July 1 and has been working since that time.
8Ms. M. Siddall outlined her difficulties getting to her training location and subsequently to work. At times she took Uber rides, for some time she got a ride from a colleague in her course, but due to late subways and trains, she might not make the pick-up time and her colleague would not wait for her. She resorted to taking Uber and Lyft rides to the pick-up location to avoid unreliable subway schedules. She moved closer to the airport and now has direct bus service to work. Again, she has had to confront unreliable timetables, with busses frequently arriving early before she has reached the stop. She described one incident where one bus driver on a similar route chased her bus and convinced the driver to let her board.
9Ms. M. Siddall’s testimony shows that she does have alternatives to the vehicle. I recognize how inconvenient the alternatives are compared to having her own car available any time she needs it, but I do not find that this inconvenience negates the fact that there are alternatives. Thus, considering Ms. M. Siddall’s evidence, she does not satisfy the first part of the test for exceptional hardship, the no alternative to the impounded vehicle test.
10The evidence showed that, for the most part, the vehicle stayed in Toronto. Had it not been impounded, it was to remain in Toronto for the whole of the month of June and would have remained there for the foreseeable future to serve Ms. M. Siddall’s work schedule. Its availability to Ms. L. Siddall was severely limited by this arrangement, such that it is hard to imagine any inconvenience to Ms. L.. Siddall resulting from the impoundment, let alone inconvenience rising to the level of exceptional hardship.
11The appellant’s main contention for exceptional hardship with respect to Ms. L. Siddall centres around the imminent birth of the Siddall’s first grandchild in Toronto. Labour is currently to be induced on July 20. There are a number of issues that arise out of this event. There is the obvious joy of a new child. Both Ms. Siddalls want to be present at the hospital. To be there, they will need to take public transit. Both Ms. Siddalls and the new parents are focussed on protecting the newborn from COVID. In their view, potential exposure to COVID on public transit is an unacceptable level of risk. There have also been health issues for Ms. L. Siddall’s daughter-in-law arising out of the pregnancy. Ms. L. Siddall’s plan was to travel to stay with her son and daughter-in-law and be the primary caregiver while her daughter-in-law recovered. She was going to use the impounded vehicle to travel, thereby avoiding the exposure risk on public transit.
12When asked why their son could not come up to their home in Orillia and take his mother to stay with him in Oshawa before the delivery was induced, Mr. Siddall testified that it was a long way and gas was expensive. This evidence does not rise above some measure of inconvenience, and it is not even at the level of great inconvenience. Mr. Siddall’s son would need to drive from Oshawa to Orillia and back, or Mr. Siddall would have to drive his wife to Oshawa on a weekend or day he was not working. Certainly, there are alternatives available to Ms. L. Siddall.
13Given my finding that neither Ms. Siddall will experience exceptional hardship as a result of the impoundment, I need not consider the other factors in s. 10 of the Regulation.
ORDER
14Having considered the evidence and for the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
RELEASED: July 14th, 2022