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 of the Act for driving while under suspension
Between:
Margaret-Ann McLean
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
S. Velocci, agent for the Registrar
Heard by teleconference:
September 29, 2022
Overview
1On August 23, 2022, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.5(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section allows a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ends on October 7, 2022.
2The appellant appeals the impoundment on the ground the impoundment results in exceptional hardship.
Result
3For the reasons outlined below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
Issue
4The issue to be determined is whether the impoundment results in exceptional hardship.
The Law
5Section 50.2 of the HTA allows only a few limited grounds on which an owner may appeal, one of which is exceptional hardship. The onus is on the appellant to establish one or more of those grounds.
6Section 10 of Regulation 631/98 (the Regulation) of the HTA sets out the requirements that must be met to show the impoundment will result in exceptional hardship.
7Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.
8Section 10(4) sets out what an appellant must show to meet this initial prong of the test:
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.
9Only if this initial step of the test for exceptional hardship is met may I then consider whether on a balance of probabilities, the impoundment will result in:
a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
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.
10Additionally, ss. 10 (2) and 10 (3) of the Regulation stipulate that unless the appellant demonstrates there was no alternative to the impounded vehicle, the Tribunal is prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship.
Evidence and Analysis
11The respondent presented documentary evidence which established that:
a) the appellant is the registered owner of the impounded vehicle, a 2009 Dodge,
b) she is also the owner of an additional vehicle,
c) on August 23, 2022, the Dodge was stopped while being driven by a person whose licence was suspended because of a Criminal Code conviction,
d) the vehicle was impounded pursuant to s. 55.1 of the HTA, and
e) the vehicle is eligible for release on October 7, 2022.
12The appellant testified during the hearing. Additionally, a social worker who has been assisting the appellant testified. I found both women to be forthright, credible witnesses. A letter from the appellant’s son was also filed wherein he outlined the necessity of having a vehicle for work purposes and the importance of him maintaining employment.
13The appellant lives in the country with her adult son. Her son has recently commenced employment at a business some thirty-one kilometres from their residence. He has been using the appellant’s second vehicle to get to work and fortunately has not had to miss any work during the period of the impoundment.
14The appellant is not presently working and relies on rental income, a pension and her son’s financial contribution to support herself.
15The appellant has medical issues that have required attention in the past and it is anticipated that in the coming period she will have to attend further appointments. However, during the period of the impoundment she had to miss one appointment with her family doctor and that appointment has been rescheduled.
16The appellant testified that for some time she has taken her daughter to Kitchener every Wednesday so that she can get counselling for ongoing issues. The trip is over an hour each way. It was clear that the appellant felt this counselling is critical to the well being of her daughter. To that end she has arranged for a friend to make the drive to Kitchener during the period of the impoundment, save and except for the first week, when the appellant described she was so upset over the impoundment that she didn’t think about how she might get her daughter to the appointment.
17Due to the presence of the second vehicle the appellant has been able to get groceries during the impoundment.
18In short, although the reduction from two vehicles to one being shared by the appellant and her son has caused inconvenience, with some juggling and reliance on a friend, the appellant has had alternative modes of transportation available to her during the impoundment.
19The main thrust of the appellant’s argument was that she was not going to be able to pay for the impoundment costs and would therefore have to rely on one vehicle instead of two. This in turn would cause ongoing exceptional hardship as she did not feel she could continue to rely on her friend and she would either miss medical appointments or her son would have to miss work because there would only be one vehicle between them.
20However, I explained to the appellant that, in determining whether she had met her onus with respect to exceptional hardship, I was limited to the criteria set out in the legislation and the criteria only dealt with the 45-day period of impoundment and not what may or may not happen after the period is over.
21It was very clear during the testimony of the appellant that the last several years have brought significant difficulties to her both emotionally and financially. However, while I may have sympathy for her current situation, I am bound by the legislative criteria set out in s. 10 of the Regulation.
22I am satisfied the appellant had alternative means of transportation during the period of impoundment. She had another vehicle to use and also relied on a friend to assist with her transportation needs. As she has not met the first prong of the test, that is the absence of alternative transport, financial hardship cannot be considered.
23As the appellant has failed to show there was no alternative to the impounded vehicle, I need not consider the remaining components of the exceptional hardship test.
24Although it is clear the impoundment resulted in inconvenience and stress for the appellant, she has failed to prove exceptional hardship under the HTA and her appeal must fail on this ground.
Order
25For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
_________________________
Katherine Livingstone, Member
Released: October 3, 2022