Licence Appeal Tribunal
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 pursuant to Section 55.1(3) of the Act.
Between:
Andrea Doyle Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Andrea Doyle (self-represented)
Catherine Clarke (appellant’s mother)
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
June 14, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Andrea Doyle, appeals the 45-day impoundment of her 2020 Mitsubishi Outlander motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on May 25, 2023, after police determined that her friend, Trevor-Dalton John (TDJ), was operating the appellant’s vehicle while his driver’s licence was under a lifetime suspension. The appellant admitted to allowing TDJ to operate her vehicle for the purpose of driving her home when she felt she was unable to do so after consuming alcohol at a party.
3Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle at the time of its detention is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
4The appellant appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on section 50.2(3)(d) of the Act.
5The onus of proving this ground of appeal rests with the appellant. To succeed in her appeal, the appellant must establish this ground of appeal on a balance of probabilities.
RESULT
6On the evidence before me at the hearing, I find that the appellant has proven on a balance of probabilities that the impoundment will result in exceptional hardship. I therefore set aside the impoundment order and direct that her vehicle be released from the impound facility.
ANALYSIS
7It is undisputed between the parties that the appellant is the owner of the impounded vehicle, that TDJ was driving it at the time it was impounded, and that TDJ’s driver’s licence was under a Criminal Code suspension at the time. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.
Has the appellant experienced exceptional hardship as a result of the impoundment
8I find that the appellant has shown that the impoundment will cause exceptional hardship for the reasons which follow.
9As a first step, s. 10(1) of O. Reg. 631/98 (“Regulation”) sets out the factors the Tribunal is to consider when determining whether an impoundment will result in exceptional hardship. Section 10(4) sets out the need for an appellant to establish that there are no reasonable alternatives to the impounded vehicle. This is a necessary first step in establishing exceptional hardship. Section 10(4) of the Regulation provides, as follows:
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 any motor vehicle during the impound period
10Section 10 (1) of the Regulation, requires me to consider whether “no alternative to the impounded motor vehicle is available”. The appellant offered evidence to demonstrate that she has no alternative to the impounded motor vehicle.
11The appellant is a single parent of two children aged 9 and 18. She has limited income and juggles multiple demands including afterschool programs, personal appointments and serving as the primary driver for her father (76 years old) who is at the end stages of cancer. He has also been recently diagnosed with dementia.
12Of note, the appellant recently gifted her daughter with a vehicle, a 2013 Dodge Journey, for her birthday. This second vehicle is under the appellant’s name, however, it is in the process of being transitioned to her daughter’s name. The appellant submitted evidence which satisfied me that the second vehicle is intended for her daughter and the delay in switching ownership was part of an attempt to keep the gift a surprise. The appellant’s daughter now utilizes this vehicle daily to go back and forth to work.
13As a result of the impoundment, the appellant’s son has had to miss karate lessons, which the appellant would normally transport him to. She testified that these lessons are imperative to her son as it helps in keeping him engaged socially.
14The appellant and her children are also experiencing personal stress as there are outstanding matters being heard at family court. This has caused a significant amount of strain and it has fallen on the appellant to provide emotional and financial support to the family. During the hearing, it became clear to me that both the appellant’s son and her parents rely heavily on the vehicle for transportation.
15During cross examination, the respondent inquired whether the appellant could use her daughter’s car. The appellant stated that she has asked in the past, but it results in her daughter becoming very upset. She is in a somewhat fragile state given the multiple personal family matters currently going on.
16In terms of public transit, the appellant testified that she has nerve damage due to an accident in 2017. For this reason, it is difficult for her to use public transit back and forth from her destinations. She is currently seeing a head and neck specialist and pain specialist to manage this condition.
17The appellant has two sisters. One has a child of her own and the other is currently experiencing a high-risk pregnancy. As a result, neither can offer her transportation support at this time. The appellant also states that she has no reliable friends who can assist her during this time.
18With the missed karate appointments for her son, the appellant cannot obtain a refund. Her father has also missed two oncology appointments (June 23 and June 28) at Princess Margaret Hospital as a result of the appellant not being able to transport him. These appointments are important as her father is currently undergoing a cancer trial. The appellant does not have the money to send her father by bus to his appointments. Nor does he feel comfortable going by himself and prefers someone to be present. He also becomes nervous in public places and the family fears he may get lost at the hospital. With her vehicle, the appellant is able to ensure his health and safety at all times.
19On one occasion, the appellant did pay a friend to take her father to his appointment, but this is not a sustainable solution as she barely managed to afford the cost. In addition to this, the appellant’s father also had a medical episode during the impoundment. It was related to his heart and required that he attend the hospital ER. This incident has resulted in further follow up with a cardiologist and possible implantation of a pacemaker.
20Once again, the appellant will be called upon as the primary caregiver for her father. She will be unable to transport him to his appointments and may have to pay out of pocket which is sometimes not possible due to her precarious financial situation. Her parents do not have any extra income beyond their government pension.
Testimony from Witness’s Mother
21The appellant called her mother, Catherine Clarke (CC), to testify. CC presented as a credible and reliable witness who corroborated the appellant’s testimony and current state of affairs. She was able to confirm the challenges experienced by the appellant’s daughter and why the 2013 Dodge Journey is not a suitable alternative at this time. She further stated that taking back the car from her granddaughter would negatively impact her as she would not be able to meet her commitments of attending work and pursuing her real estate licence to help in her personal growth.
22In this matter, I find that the appellant has met the burden to demonstrate that there are no reasonable alternatives available to her and that the health and safety of others who rely on the vehicle may be placed in danger due to the impoundment.
23Based on the evidence, and in accordance with s.10(4) of O. Reg. 631/98 I find that the appellant has no reasonable alternative to the impounded vehicle and the loss of the vehicle will have detrimental effects at this time. As such, I am satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.
ORDER
24For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I set aside the impoundment order and order the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: July 13, 2023