Adefolaju Ajagbe v. Registrar of Motor Vehicles, 2023 CanLII 44326

Licence Appeal Tribunal File Number: 14861/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:

Adefolaju Ajagbe

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Adefolaju Ajagbe, self-represented

For the Respondent: Andrew Sookhoo, Agent

Date of Teleconference Hearing: May 11, 2023

Overview

1Adefolaju Ajagbe (“appellant”) appeals the impoundment of his 2020 Honda (“vehicle”).

2The appellant’s driver’s licence was administratively suspended on April 17, 2023, when he pled guilty to dangerous operation of a motor vehicle under the Criminal Code. He claims he was unaware that the conviction would result in an automatic suspension of his driver’s licence, and he continued to drive. A few days later, on April 26, 2023 his vehicle was impounded when police discovered him driving it. The vehicle is scheduled to be released on June 10, 2023.

3The appellant’s sole ground of appeal is 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 Criminal Code convictions, including dangerous driving.

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 only five 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 the 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 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.

11The regulation also states the Tribunal shall not consider financial loss or loss of employment 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,
• The impact of the loss will not be as a result of loss by the suspended driver.

(b) No Alternative to the Impounded Vehicle

12I conclude that the impounded vehicle is ordinarily used by the appellant’s spouse to get to work and there is no viable alternative available for that purpose.

13The appellant provided evidence on this point which I accept. He lives in East Gwillimbury with his spouse and two children, 4 and 7 years old. The impounded vehicle is the only vehicle in the household and is needed to get the children to their after-school activities, attend appointments, get groceries and other household necessities, and run errands. However, most crucially, the vehicle is required by the appellant’s spouse to get to work. East Gwillimbury is in York Region about 55 km north of Toronto. The appellant has been unemployed for months and the family of four depends solely on his spouse’s income. The spouse is a personal care worker who provides in-home assistance to elderly clients. She works for a company whose offices are in downtown Toronto. After confirming her availability, she attends at the Toronto office and receives her assignment for that day. She then travels by car to the assigned client’s home somewhere in the GTA. Although York Region offers some public transportation and there is a GO service from Newmarket to downtown Toronto, she still requires a vehicle to get to the homes of the assigned clients.

14There is another vehicle registered in the appellant’s name (a 2006 Honda) but I accept the appellant’s testimony that the 2006 Honda is not road worthy. Its engine overheats, it has significant collision damage to the front, it has not been operated for months, and is unsuitable to be driven safely to Toronto and back regularly.

15According to the appellant the family has no savings and with his spouse now unable to attend work, the family has no income. They moved to East Gwillimbury recently and have no friends or family nearby who can assist. Taxis, UBER or renting a vehicle are all beyond his family’s present financial means.

16Based on the evidence provided, I conclude on a balance of probabilities that there is no viable alternative to the impounded vehicle that will allow the spouse to get to work.

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

17I conclude that there is no convincing evidence that the impoundment will result in a significant threat to the health or safety of anyone.

18The appellant’s two children are healthy. However, the appellant has been told by the school authorities that his children must be immunised to continue attending. He has been given a deadline for that but could not recall what it was. He provided no evidence regarding where the children must go to get immunised or whether it is possible to get to that location without the impounded vehicle. The appellant lives in York Region which provides a public transportation service. Based on the facts presented, the impoundment does not appear to pose a significant or immediate threat to the health of the children, or anyone else in the household.

(d) Impoundment will Result in Financial Loss/Loss of Employment

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 facts presented I conclude that the impoundment will cause a significant financial loss and possibly loss of employment to the appellant’s spouse. The impoundment will result in her inability to earn income and may result in the loss of her employment altogether. The appellant has been unemployed for months and he and his family depend exclusively on his spouse’s income.

20The regulation states that the Tribunal may only consider financial loss or loss of employment as exceptional hardship if the loss will be immediate, significant, and lasting, 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, a financial loss) will not be because of a loss by the suspended driver

21The available evidence establishes that the impoundment will result in a direct financial loss to the appellant’s spouse and possibly the loss of her employment. That loss is immediate – the spouse has been unable to attend work and her income ended when the vehicle was impounded, it is significant - because it is the only income stream for the family, and it is lasting – the impoundment will result in no income for at least 45 days, and quite possibly the permanent loss of the spouse’s employment. The financial loss will be suffered by someone other than the appellant – it will primarily affect the appellant’s spouse but will also have a negative impact on the appellant’s children. Finally, the impact of the loss to the spouse and her children will not be because of a financial loss to the appellant (the suspended driver), it will be a direct result of the impoundment.

(e) Summary

22In summary, I conclude that the impoundment will result in a financial loss and possibly a loss of employment to the appellant’s spouse that amounts to “exceptional hardship” as that term is used in the Act and Regulation.

ORDER

23Pursuant to s.50.2(5) of the Highway Traffic Act, I direct the Registrar to release the impounded vehicle.