Date: 2023-05-04

An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from

the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Kazimiera Lech

Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

Panel: Laura Hodgson, Member

Appearances:

For the Appellant: Bartz Hecht, relative of appellant

For the Respondent: Andrew Sookhoo, Agent

Place and date of hearing: By teleconference, May 3, 2023

REASONS FOR DECISION AND ORDER

Overview

1The appellant’s motor vehicle was detained and impounded on April 3, 2023, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to detain and impound a motor vehicle if the licence of the driver is suspended for a Criminal Code related reason. Here, the driver of the appellant’s vehicle, the appellant’s grandson, had a Criminal Code related suspension.

2The issue in dispute is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Act.

3Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant established, on a balance of probabilities, exceptional hardship pursuant to the legislation and regulations. The appeal is allowed, and the vehicle is ordered released.

The Impoundment Will Result in Exceptional Hardship

The Law

4Section 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. Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. If the owner fails to establish that there is no alternative available, then her appeal must fail. In order to show that there is no alternative to the impounded vehicle, the owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person.

5If the appellant establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle. The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

Analysis

6I find that the appellant has established, on a balance of probabilities, that she does not have an alternative to her impounded vehicle as set out in s. 10(4) of the Regulation.

7The appellant is 84 years old and was represented by her grandson at the hearing. Her grandson testified that the appellant speaks Polish, but her English is limited. The appellant lives alone in Brantford. She had hip surgery in the past year and now uses a walker. Her grandson indicated that because of financial, mobility and language issues, the appellant does not use public transit or taxis.

8The appellant’s driver’s licence has expired but her vehicle is used by her daughter who lives in Wiarton, Ontario. Prior to the impoundment, the appellant’s daughter regularly commuted to Brantford to take her mother to medical appointments and to get groceries. Since the impoundment, the appellant’s daughter, on one occasion, took a taxi, at a cost of over $300.00, to Brantford to assist the appellant. The appellant’s grandson indicated that renting a vehicle is not feasible because neither his mother nor grandmother can make the necessary deposit. Both his mother and his grandmother have limited savings and rely on government assistance. While the appellant has a son who lives in Brantford, the appellant’s grandson testified that this family member is of limited assistance to the appellant.

9In the respondent’s submission, the appellant has viable alternatives to the impounded vehicle including taking taxis and requesting assistance from family members. I disagree.

10Because of her age, language and mobility issues, the appellant is not able to take public transit and her limited income precludes other options, such as taxis, Uber or renting a vehicle. The appellant depends on her daughter in Wiarton for transportation to medical appointments and her personal needs. While the appellant’s daughter has, on one occasion, taken a taxi from Wiarton to assist the appellant in Brantford, this is not a practical solution. In all the circumstances, the appellant has established that there is no alternative to the impounded vehicle.

11Having established that there is no alternative to the impounded vehicle, I must next consider whether not having the impounded vehicle will result in a threat to health and safety as set out in s. 10 (1) of the Regulation.

12The appellant’s grandson testified that since the impoundment, the appellant has missed an appointment with her family doctor and an appointment with a hip specialist in Hamilton. Although documentation was not provided, I accept this evidence. Given that the appellant has now missed two medical appointments, I accept that the impoundment threatens her health and safety.

Conclusion and ORDER

13For the above reasons and pursuant to section 50.2(5) of the Act, I allow the appeal and order the release of the appellant’s vehicle on the grounds of exceptional hardship.

Licence Appeal Tribunal

Laura Hodgson, Member