Lynda Mace v. Registrar of Motor Vehicles, 2023 CanLII 62902

Licence Appeal Tribunal File Number: 14931/MVIA

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:

Lynda Mace

Appellent

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Lynda Mace, self-represented

For the Respondent: Leila Pereira, Agent

Date of Teleconference Hearing: June 7, 2023

Overview

1Ms Lynda Mace (“appellant”) appeals the impoundment of her 2014 Ford Edge (“vehicle”).

2The vehicle was impounded on May 17, 2023, when police discovered it being driven by a driver whose licence was under suspension for a previous drinking and driving offence. The vehicle was impounded for 45 days as required under the Highway Traffic Act (“Act”) and it will be released on July 1, 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

5For the reasons set out below, I conclude that the impoundment will not result in “exceptional hardship” as that term is used and limited by the Act and regulations, and I have therefore confirmed the impoundment.

ANALYSIS

(a) The Law

6Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it is being driven by a person whose licence is under suspension because of a Criminal Code conviction for a drinking and driving offence.

7Under ss. 50.2(1) to (5) of the Act, the 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.

8Section 50.2(3) of 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.

9A regulation made under the Act (O. Reg. 631/98 (“regulation”)) sets out the factors that the Tribunal is required to consider in determining whether an impoundment will result in exceptional hardship.

10Section 10(1) 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 available alternative. To show that no alternative is available, section 10(4) of the regulation states that:

…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 the vehicle during the impound period.

11If 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. The Tribunal is prohibited from considering inconvenience in deciding whether the impoundment will result in exceptional hardship.

(b) Alternative to Impounded Vehicle

12The appellant suffers from a chronic medical condition – rheumatoid arthritis - that significantly impacts her mobility. In 2015 she had hip replacement surgery made necessary by her condition. Since then, she has had five additional surgeries on her hip because of complications arising from her condition and wound infection. Her last surgery was in January 2023. She now walks with the help of a walker and has a handicapped parking sticker on her car.

13The appellant lives in Guelph and attends weekly physiotherapy sessions in that city. Up until the impoundment, the appellant used her vehicle to drive herself to the physiotherapy appointments. The impounded vehicle is the only vehicle in the household and since the impoundment she has not attended any appointments because of lack of transportation. She sees a medical specialist in Mississauga once every three months and requires a vehicle to get there. However, her last visit was in April and her next visit will be in July. It appears that the impoundment will be over by then and it will not impact her ability to see the specialist.

14The appellant also states that her surgeon at Toronto’s Mt. Sinai Hospital wants to see her for follow-up after her January surgery, but she will be unable to schedule an appointment until her vehicle is available. No evidence was provided that would indicate that there is any immediate medical urgency for that visit that cannot wait until after the impoundment is over.

15The appellant has been able to get groceries, household necessities and medications by use of taxis. However, according to the appellant, she is on a modest CPP disability pension and taxis are expensive on her limited budget.

16The main concern expressed by the appellant is that without the impounded vehicle she is unable to attend her weekly physiotherapy appointments. However, I conclude that the appellant has failed to demonstrate that she has considered and inquired into every reasonable alternative to the impounded vehicle for that purpose.

17I agree with the appellant that public buses are not an option for her. However, the appellant has a daughter who lives about 25 minutes away by car. According to the appellant she has not asked her for help in getting to her physiotherapy appointments because the daughter has a new baby, and the appellant assumes the daughter would not be able to assist. Guelph has a Wheel-Trans program, but the appellant has not investigated that because she says that access to the program requires an assessment that will likely not be completed before the impoundment is over. The appellant has been able to use taxis to get groceries and household necessities but appears not to have considered the option of combining taxi trips to the grocery store with visits to the physiotherapist.

(c) Summary

18In summary I have much sympathy for the appellant, and I have no doubt that managing her transportation needs with her medical condition is challenging. However, to conclude that that the impoundment will result in “exceptional hardship”, I am required by the regulation to consider whether there is no alternative to the impounded vehicle and the appellant must demonstrate that she has considered and inquired into every available option. In this case I conclude that the appellant has not demonstrated that, and I have therefore confirmed the impoundment.

ORDER

19Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.