Sean Penlington v. Registrar of Motor Vehicles, 2023 CanLII 44320

Licence Appeal Tribunal File Number: 14843 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:

Sean Penlington

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Sean Penlington, self-represented

For the Respondent: Leila Pereira, Agent

Date of Teleconference Hearing: May 16, 2023

Overview

1Sean Penlington (“appellant”) appeals the impoundment of his 2014 Hyundai (“vehicle”).

2The vehicle was impounded on April 22, 2023, when police discovered it being driven by Crystal Roden. Ms. Roden had borrowed the vehicle from the appellant. He understood she had a valid driver’s licence. In fact her licence was under suspension because of a 2019 conviction for a Criminal Code driving offence. The appellant’s vehicle was impounded for 45 days as required under the Highway Traffic Act (“Act”).

3The appellant appeals the impoundment on the ground that the impoundment will result in exceptional hardship.

ISSUE

4Will the impoundment result in exceptional hardship as that term is used in the Act and regulations?

RESULT

5I conclude that the impoundment will result in “exceptional hardship”, and I direct the Registrar to release the impounded vehicle.

ANALYSIS

(a) The Law

6Under the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension because of certain driving related Criminal Code convictions.

7The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle. The Act allows limited grounds on which an owner may appeal, and they include the ground the appellant relies on in this case - “that the impoundment will result in exceptional hardship.” The onus is on the appellant to establish the facts that support that ground of appeal on a balance of probabilities.

8A regulation made under the Act (O. Reg. 631/98 (“regulation”)) sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.

9Section 10 of that regulation provides that the Tribunal must consider whether there is an alternative to the impounded vehicle. The onus is on the appellant to establish that there is no viable alternative. To show that no alternative is available, the regulation requires the owner to demonstrate that every reasonable option has been considered, including using another vehicle or making to do without the vehicle during the impound period.

10If no alternative to the impounded vehicle 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.

11Section 10 of the regulation also states the Tribunal shall not consider loss of education or educational opportunity as exceptional hardship unless the owner demonstrates that:

• there is no alternative to the impounded vehicle,
• the loss will be immediate, significant, and lasting,
• the impact of the loss will be on a person other than the person whose driving while suspended resulted in the impoundment, and
• the impact of the loss will not be as a result of loss by the suspended driver.

(b) No Alternative to the Impounded Vehicle

12Based on the evidence presented and for the reasons below, I conclude that the appellant has no alternative to the impounded vehicle for the purpose of getting his children to school each day on time.

13The appellant is a single father of four school age children who are 4, 7, 9 and 11 years old. He is separated from their mother and has custody of all four children each alternate week. The children attend a school located close to their mother’s home. Unfortunately, the appellant lives on the opposite side of town, about 4.5 km away from the school. According to the appellant, the main reason why the impoundment will cause exceptional hardship is that without the vehicle he will not be able to get his four children to school and they will suffer a loss of education for the duration of the impound period.

14The appellant’s financial means are limited. His income comes exclusively from Ontario Disability Support Program benefits and one half of the childcare benefit. After rent, utilities, groceries, car payments and insurance are paid there is little money left over. The appellant does not have the financial resources to rent a vehicle for the impound period or take taxis or UBERs to and from school each day. The appellant lives in Stratford which has a bus service. However, to get the children from his home to the school and back requires two buses and a transfer at a central bus station. According to the appellant, it is difficult and time consuming to navigate the buses with four small children.

15The appellant has investigated leaving the children with their mother for the impound period. However, she is not agreeable to that. She has just begun a time-consuming new job and wants the appellant to have the children more, not less. The appellant has no family or friends nearby who can assist with driving his children to and from school.

16The appellant has attempted to get in touch with Ms. Roden to request some contribution since it was her driving while suspended that resulted in the impoundment. According to the appellant she has refused to respond to his many attempts to communicate with her.

17As a result, since the impoundment the appellant has mainly been getting the children to school by walking the 4.5 km to the school and back. However, in my view walking the children to school and back each day is not a viable alternative to the impounded vehicle. The youngest children cannot walk that far, and the appellant has been pulling them in two wagons tied together. The appellant states that this is physically difficult and time consuming. After getting the children up, organised and then walking/pulling them to school the children have been consistently late. He cannot seem to get them to the school before 10:30 or 11:00 am.

(c) Threat to Health and Safety of Anyone Ordinarily Transported by the Vehicle

18If there is no alternative to the impounded vehicle, the regulation requires me to consider whether the impoundment will result in a threat to the health and safety of anyone. In this case there is no evidence that the impoundment will result in a significant threat to the physical health or safety of the appellant or his children who are ordinarily transported by the vehicle.

(d) Impoundment will Result in Loss of Education

19This is the appellant’s main concern and the primary basis upon which he argues that the impoundment will result in exceptional hardship. Based on the evidence presented, I conclude that the impoundment will result in the appellant’s children being unable to attend school each day and on time for the impound period. That will result in a loss of education or educational opportunity for the four children that, in the circumstances of this case, results in exceptional hardship.

20The regulation states that the Tribunal may only consider loss of education/educational opportunity as exceptional hardship if the loss will be immediate, significant, and lasting, it will be suffered by someone other than the suspended driver whose driving resulted in the impoundment, and the impact of the loss (in this case loss of education) will not be because of a loss by the suspended driver.

21In this case I conclude that the loss is immediate – based in the appellant’s evidence, the children been unable to attend school each day on time since the vehicle was impounded.

22The loss is also significant and lasting. The appellant obtained the impounded vehicle recently. For a period of time before he got that vehicle, he had no vehicle and had to get the children to school and back by other means, usually by walking with the assistance of hand pulled wagons. It was impossible to get the children up, organised and walk them to the school on time. On days when there was too much snow or rain the children would not attend school at all. According to the appellant, the children were absent or late so often that school officials and the CAS became involved and one of his children had to take make-up classes last summer to catch up.

23The appellant was told by school officials that the children’s lateness affected their educational development and he provided school attendance records and report cards for the children that confirm that. The attendance records note many absences and late arrivals, and the report cards mention the negative impact of that on the children’s learning and development. On one of the children’s report cards a teacher noted “He has many strengths and would be able to learn if was given an opportunity to be at school every day. Regular attendance would also make him feel more confident about himself”.

24Later the appellant obtained the impounded vehicle and the children’s attendance improved. Now the impoundment has resulted in the children being again unable to attend school on time. In my view, the evidence establishes that the children’s excessive absence/lateness has had a significant negative impact on their educational progress and a further 45-day period of absence/lateness will have a similar significant and lasting negative impact.

25Finally, the loss of education will be suffered by the appellant’s children, not the suspended driver whose driving caused the impoundment, and the loss will be a direct result of the impoundment, not a result of a loss by the suspended driver.

(e) Summary

26In summary, after taking into account the criteria set out in the regulation and the evidence before me, I conclude that the impoundment will result in “exceptional hardship” as that term is used in the Act and regulation.

ORDER

27Pursuant to s.50.2(5) of the Highway Traffic Act, I direct the Registrar to release the impounded vehicle.