Licence Appeal Tribunal
Tribunal File Number: 14666/MVIA
In the matter of 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 under section 55.1 of the Act for driving while suspended.
Between:
Carmen Findlay Appellant
and
Registrar of Motor Vehicles Respondent
DECISION
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Carmen Findlay, Self-represented For the Respondent: Andrew Sookhoo, Representative
Heard by Teleconference: March 16, 2023
OVERVIEW
1Carmen Findlay, the appellant, appeals from the impoundment of her 2010 Honda, the vehicle, on February 18, 2023 for 45 days.
2The appellant appeals on the ground that the impoundment will result in exceptional hardship to her because she needs her vehicle to get to her employment, medical appointments and because she has back issues which make it difficult for her to use public transit.
ISSUES
3The issue in dispute is:
i. Issue 1: Whether the impoundment will result in exceptional hardship.
RESULT
4I find that the impoundment will not result in exceptional hardship.
ANALYSIS
5The 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.
6An 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 (d), that the impoundment will result in exceptional hardship.
Issue 1: Will the impoundment result in exceptional hardship?
7I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.
8Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order 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 in order 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.
9If 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.
10I 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.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The appellant testified that she is employed full-time at Metrolinx, a public transportation provider. She works approximately a one-hour drive or a one-hour public transit ride away from her home. At her employment, the appellant is required to work shifts which sometimes are late into the night and early in the morning, and she works overtime as well.
13The appellant testified that, except for a few days, she has not missed any work during the period of impoundment so far because she has taken vacation time and also taken public transportation, ubers and taxis to get to work. The appellant said this is expensive for her. In addition, she has not been able to work as much overtime because this requires her to work at times when public transit has closed for the night and she does not feel safe in public transit facilities late at night or early in the morning waiting for public transit service to resume in the morning. The appellant testified that she has not told her employer about the impoundment and did not make any suggestion that her employment has been jeopardized by inability to access her vehicle during the impoundment so far.
14The appellant testified that although she has missed several medical and physiotherapy appointments, she has been able to attend others by using uber and taxis, although she finds this expensive.
15The appellant testified that she has been able to walk to stores which are about 15 minutes away from her home on days that her back does not hurt too much to get groceries and other supplies. On days when she is unable to walk, she takes taxis, ubers or public transit.
16In cross-examination the appellant confirmed that her employment entitles her to use her employer's public transportation free of charge.
17The appellant also confirmed that she owns a second vehicle, a 2019 Kia which is insured and parked at her home but she says it is not safe to drive because it has mechanical issues which need to be fixed.
18The appellant also testified that, if she has to pay the impoundment fees to obtain release of her vehicle, this will be a financial hardship for her.
19It is clear from the appellant's testimony that arranging alternate transportation to her full-time employment during the impoundment period is inconvenient for her and can cause her back pain.
20Inconvenience is not a factor which the Tribunal can take into consideration.
21While the appellant says she can experience back pain from taking public transit, the December 8, 2022 report of appellant's physician Dr. Ramjee indicates the appellant is able to drive, has not been referred to a specialist for her back pain, and most importantly, is able to use public transit. Dr. Ramjee does not indicate any restrictions on the appellant's ability to use public transit.
22I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.
23I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period including use of her employer's public transportation free of charge, other publicly available transportation, ubers, taxis, walking to nearby retail stores, and use of the second vehicle that she owns (subject to putting it in safe mechanical condition prior to use if necessary). Further, the appellant has been able to temporarily adjust her working hours by using her vacation time and not working overtime during the impoundment period so far.
Conclusion
24As a result, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER
25Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: March 23, 2023