Alexis Yorke v. Registrar of Motor Vehicles, 2023 CanLII 40149

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:

Alexis Yorke

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Alexis Yorke

For the Respondent: Leila Pereira

Heard by teleconference: May 2, 2023

BACKROUND

1Alexis Yorke (the “appellant”) appeals the 45-day impoundment of her 2015 Honda Civic (the “vehicle”) under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on March 31, 2023. At the time of the impoundment, Joel Fisher was driving the vehicle while his licence was under suspension.

2The appellant appeals on the grounds that the impoundment will cause exceptional hardship.

PRELIMINARY ISSUE

3On April 20, 2023, the appellant filed a Notice of Motion requesting an extension of time for filing the Notice of Appeal. It was the appellant’s understanding that, although she sent the Notice of Appeal by express mail prior to the deadline of April 15, 2023, it was not ‘opened’ in time. The agent for the respondent Registrar of Motor Vehicles advised that, as they had received the appellant’s Notice of the Appeal from the Tribunal on April 13, 2023, it is apparent that the Tribunal did receive the Notice of Appeal within the prescribed period of 15 days. I find that the appellant’s motion is not required, and I dismiss the motion as moot.

ISSUE

4In accordance with the Notice of Appeal, the issue to be determined is:

i. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

5For the reasons set out below, I allow the appeal and order the Registrar to release the vehicle.

EVIDENCE AND ANALYSIS

Issue – Will the impoundment of the vehicle result in exceptional hardship?

6I find that appellant has established on a balance of probabilities that the impoundment will result in exceptional hardship.

Evidence of the respondent

7The Registrar referred to the Notice to Registrar, dated March 31, 2023, in which Joel Fisher is listed as the driver of the vehicle and the appellant as the owner of the vehicle. The Notice to Registrar states the location of the incident as County Road 121 in the City of Kawartha Lakes, Ontario.

8The Registrar referred to the Extended Driver’s Record Search for Criminal Code Convictions of Mr. Fisher, dated April 26, 2023. The Driver’s Record Search lists the driver’s licence status as Suspended, Cancelled, Unlicensed and Unrenewable due to a criminal conviction.

Testimony of the appellant

9The appellant testified that she lives alone in the town of Haliburton. There is no transit nor ride sharing services in Haliburton and she does not have access to rides or vehicles from friends or family. She returned to Haliburton, her former home, two years prior and was pleased to obtain the vehicle after having repaired her credit rating.

10The appellant is currently employed as a server at a local restaurant as well as being self-employed as a cleaner at Airbnb properties. During the period of the impoundment of the vehicle, she has been unable to service her Airbnb customers, and is sure that those customers have obtained other cleaning services. She is able to walk to work at the restaurant. She is also able to walk to get groceries and necessities. The appellant has no doctor and has no health concerns that are impacted by the impoundment of the vehicle.

Analysis

11The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.

12In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that they have considered every reasonable option that could reduce eliminate a threat or loss amounting to hardship. This includes using another vehicle and making arrangements to do without a vehicle.

13In determining whether a person has suffered exceptional hardship, the Tribunal cannot consider “inconvenience to any person” as a factor (see s. 19(2) and 10(3) of the Regulation.

14The Tribunal cannot generally consider financial or economic loss to any person; loss of employment or employment opportunity to any person; or loss of education or training or of an educational or training opportunity to any person in determining whether exceptional hardship exists. However, if there is no alternative to the impounded vehicle available, the economic loss will be immediate, significant and lasting, and such loss will impact a person other than the suspended driver and the impact of the loss will not be the result of a loss by the suspended driver, then the Tribunal may consider these factors.

15It is the appellant’s evidence that the impoundment of the vehicle is causing financial hardship. While she does not have access to an alternate vehicle, public transit, or ride sharing, she is able to walk to her employment at the restaurant. However, while she will attempt to rebuild her clientele in her Airbnb cleaning services, she is unsure of that possibility.

16I found the appellant to be credible. She did not hesitate to advise that she is able, without use of the vehicle, to access her restaurant job, get groceries and has no health concerns which may be impacted by the impoundment. At the same time, she is concerned that her cleaning business may not recover.

17I am satisfied from her testimony that the appellant is not a person of substantial financial means, and that she must work two jobs to survive financially. The loss of one of the appellant’s sources of income, that of her cleaning business, is immediate and significant. The evidence establishes that there is no reasonable alternative to the vehicle with respect to the appellant maintaining her cleaning business. There is no evidence, however, that during the impoundment period, her employer at the restaurant has increased her hours to make up the shortfall from the loss of her cleaning income. The Appellant testified that she is sure that her customers have obtained new cleaners and she is unsure as to whether her business can recover from the loss of those customers, a loss which would certainly be long lasting.

18With respect to the appellant’s Airbnb cleaning business, I find on a balance of probabilities that that the financial or economic loss to the appellant is immediate, significant and long lasting. I find, therefore, that the impoundment of the vehicle has resulted in exceptional hardship.

ORDER

19For the reasons set out above, I order the Registrar to release the appellant’s vehicle.