Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, (“Act”) from an impoundment of a motor vehicle under section 55.1 of the Act.
Between:
Jennifer Orlewicz
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Jennifer Orlewicz, Self-Representative
For the Respondent: Leila Pereria, Agent
Heard by Teleconference: August 29, 2022
Overview
1Ms. Jennifer Orlewicz (“appellant”) appeals the 45-day impoundment of her 2018 Audi (“vehicle”).
2It was impounded on August 4, 2022, when police discovered it being driven by Neal Hanniman. Mr. Hanniman’s driver’s licence was subject to a condition that prohibited him from driving a vehicle not equipped with an ignition interlock device. The appellant’s vehicle was not equipped with such a device, and the vehicle was impounded as required by s. 55.1 of the Highway Traffic Act (“Act”).
3The appellant appeals the impoundment on two grounds:
i. she exercised due diligence in attempting to determine that Mr. Hanniman’s driver’s licence was not subject to the ignition interlock condition (“condition”); and
ii. the impoundment will result in exceptional hardship.
4Based on the evidence presented, the appellant has not satisfied the onus of proving that she exercised due diligence in attempting to confirm that Mr. Hanniman’s licence was not subject to the condition.
5However, the appellant has satisfied the onus of establishing that the impoundment will result in exceptional hardship, and I have ordered the Registrar to release the appellant’s vehicle on that basis.
THE LAW
6Under the Act, a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven in contravention of a driver’s licence condition prohibiting the driver from operating a motor vehicle unless equipped with an ignition interlock device.
7The owner of an impounded vehicle may appeal the impoundment to this Tribunal, and on an appeal, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
8The Act allows only five grounds on which an owner may appeal, and they include the two grounds which the appellant relies on in this case. The onus is on the appellant to establish the facts that support those grounds on a balance of probabilities.
ANALYSIS
(a) Due Diligence
9The appellant argues that she exercised due diligence in attempting to determine that Mr. Hanniman’s licence was not then subject to a condition requiring an ignition interlock device. Due diligence means taking all steps that that a prudent person would reasonably be expected to take to determine that Mr. Hanniman’s licence was not subject to the condition. With that in mind, I conclude that the appellant did not exercise due diligence to determine the status of Mr. Hanniman’s driver’s licence.
10The appellant testified that she did not specifically ask Mr. Hanniman to see his licence when she lent him her vehicle. However, she was aware he had an Ontario driver’s licence - Mr Hanniman kept his licence in his phone case, and she had seen it before on occasion. According to the appellant, his licence appeared to be valid, and she did not note that it was subject to any conditions.
11However, a copy of the front and back of Mr Hanniman’s licence was placed into evidence. The front indicates that the licence is subject to a condition and the back of the licence indicates that the condition is that an interlock required.
12It appears that the appellant never purposefully examined Mr. Hanniman’s licence to determine if it was subject to a condition. At a minimum, due diligence would require that the appellant physically examine the driver’s licence and note any conditions. If that had been done the condition requiring an interlock device would have been obvious. The appellant failed to do that, and I therefore conclude that the appellant did not exercise due diligence in attempting to determine that Mr Hanniman’s licence was not subject to a condition that prevented him from legally driving her vehicle.
(b) Exceptional Hardship
13I conclude that the appellant has met the onus of establishing that the impoundment will result in exceptional hardship.
14Section 10 of Ontario Regulation 631/98 (the “Regulation”) provides that in determining whether an impoundment will result in exceptional hardship, the Tribunal must consider whether an alternative to the impounded vehicle is available. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
15In order to show that no alternative to the impounded vehicle is available, the Regulation states that the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
16In this case I am satisfied that there is no reasonable alternative to the impounded vehicle. The appellant is a single mother with two small children aged 3 and 6 years old. The impounded vehicle is the only vehicle owned by her and she has no access to any other vehicle.
17The appellant lives in a rural area outside of Renfrew, Ontario. According to the appellant, the closest grocery store is 11 km away. She moved there about 1 year ago and has no friends or family in the area that can assist with her transportation needs. According to the appellant, there is no public transportation and no UBER service although she has not looked into whether a taxi service is available. She testified that she cannot afford the cost of renting a vehicle for the impound period.
18According to the appellant, she works full time from home but on occasion must go to the office and requires a vehicle for that. She also requires a vehicle in case of an emergency, to get groceries, household and pharmacy items, attend doctor and dentist appointments for herself and her children, and provide her children with recreational and social opportunities. The appellant testified that since the impoundment she has been grocery shopping once and completed the 11 km (one way) trip by bicycle.
19The appellant is separated from her spouse who lives in Ottawa, about an hour away. When school starts in September, the children will be staying with the appellant during the week and with their father on weekends. The oldest child will start school and the younger one will be in day care. The appellant will be responsible for getting her oldest child to school. However, a car is required because the school bus stop is 2.5 km away from her home.
20Taking those factors into account, I conclude that in the appellant’s circumstances, there is no reasonable alternative to the impounded vehicle available to the appellant.
21The Regulation also requires that I consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle. In this case there is no acute, immediate threat – there was no evidence suggesting that the appellant or her children require frequent visits to the hospital, suffer from chronic conditions, or require regular medical treatment outside the home.
22However, the evidence is that the appellant is responsible for the care of two small children in a comparatively isolated, rural location. The lack of a vehicle in these circumstances for a 45-day period is not merely an inconvenience. Having access to a vehicle is a necessity which enables the appellant to provide her children with groceries and household necessities as well as access to assistance in case of an emergency. In my view the impoundment will not result in an immediate threat to health and safety. However, a vehicle is necessary to ensure the continued health and safety of the children over the impound period.
23There are two additional factors that contribute to the hardship resulting from the impoundment. Firstly, according to the appellant her six-year-old child will start school on September 6. Without a vehicle it is difficult if not impossible to get the child to the school bus stop. As a result, the impoundment will likely result in the child missing the important first few weeks of school.
24Secondly, according to the appellant, her custody agreement contemplates that the children stay with her during the week and with their father on the weekends. The father lives about an hour away and according to the agreement she must transport the children to their father on a weekly basis. Without a vehicle it will be difficult to comply with that arrangement and that will jeopardise and disrupt the custody arrangement now in place. In my view, that likely outcome is undesirable and adds to the hardship that results from the impoundment.
25In summary, taking the above factors into consideration in their totality, I conclude that in the present circumstances the impoundment will result in exceptional hardship to the appellant and that the impoundment should be set aside on that basis.
ORDER
26Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant’s vehicle.
Licence Appeal Tribunal
Stephen Scharbach, Member
Released: September 2, 2022