Licence Appeal Tribunal
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act
Between:
Shannan McCarty
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Shannan McCarty, Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by Teleconference: July 29, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Shannon McCarty (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on July 3, 2022. At the time of the impoundment, a police officer determined that the appellant’s husband, David McCarty, was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals the impoundment on the grounds that the impoundment will cause exceptional hardship. She also alleges that the impoundment was improper and that her husband was not driving the vehicle on a highway when it was impounded.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
4The issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
EVIDENCE AND ANALYSIS
5The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2014 Nissan;
(2) on July 3, 2022, the police discovered the impounded vehicle being driven by David McCarty; and
(3) Mr. McCarty’s licence was under suspension for a criminal conviction at the time the vehicle was impounded.
Exceptional Hardship
6Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
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 fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.
9If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used.
10Pursuant to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
11In the present case, the appellant testified that she uses the impounded vehicle to drive to and from work, to drive to medical appointments, to drive to her daughter’s home in London to help with her young children, and to complete household shopping and other errands.
12With respect to her employment, the appellant says that she is a store manager at a Dollarama location in Sarnia. It takes her about 15 minutes to drive to work and she works 50-60 hours a week. The appellant says that she has been taking taxis to and from work since the impoundment and has been able to get rides home from work from co-workers occasionally. The appellant has not missed any time from work due to the impoundment.
13The appellant says that it is too expensive for her to continue to take taxis to work and she will have to start taking public transportation. She has not used public transportation until now because that would take her an hour each way which she says is inconvenient.
14With respect to her medical appointments, the appellant says she is being regularly monitored for diabetes and a heart condition. She must travel out of town for her specialist appointments and so public transportation is not an alternative to driving. The appellant has specialist appointments for her diabetes every three months and has missed one appointment during the impound period. She has rescheduled that appointment and expects that she will miss no other appointments. The appellant has appointments to monitor her heart condition every six months and the impoundment will have no effect on her attendance.
15With respect to visiting her daughter and grandchildren in London, the appellant did that about once a week and will resume once her vehicle is released. She says that she helps her daughter by giving her relief from her childcare responsibilities on these visits and misses seeing her grandchildren.
16The appellant says that not have a vehicle available makes completing household errands such as shopping for groceries difficult. She acknowledges that she has access to public transportation and does not allege that she is unable to complete her regular errands due to the impoundment.
17I am not satisfied that the appellant has proven that there are no alternatives to the impounded vehicle available to her. During the impound period, the appellant has been able to conduct all her normal work activities by using taxis and getting rides from co-workers. She has access to emergency services if they are needed and there is public transportation available to her. She has missed only one medical appointment which she has rescheduled and will miss no more appointments during the impoundment period. Although she has not seen her daughter and grandchildren during the impoundment period, the appellant presented no evidence that she would be unable to get to London from Sarnia by taking the train or a bus and, in any event, this type of loss does not fall within the definition of exceptional hardship under the Act and Regulation.
18The impoundment has undoubtedly been inconvenient for the appellant and has resulted in added expenses for her and her household. However, the Act does not permit me to consider inconvenience when determining whether an impoundment will result in exceptional hardship. Given that the appellant has alternatives to the impounded vehicle available to her, her appeal under s. 50.2(3)(d) must fail.
Propriety of the impoundment
19The respondent filed evidence which shows that the police officer who directed the vehicle to be impounded witnessed Mr. McCarty driving the vehicle on a highway and then exiting the driver’s side of the vehicle. At the hearing, Mr. McCarty testified that he never drove the vehicle as alleged by the officer and that the officer was either mistaken or was not telling the truth. He says that he did back the vehicle out of a service bay at the garage where he works but never drove the vehicle off the property as is alleged by the police.
20The grounds available for an owner to appeal an impoundment under s. 55.1 of the Act are limited to those set out in s. 50.2. Those grounds do not include circumstances where an officer incorrectly alleges that the suspended individual was driving the vehicle on a highway rather than on private property. I therefore make no findings with respect to this allegation.
ORDER
21For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: August 03, 2022