Licence Appeal Tribunal File Number: 14989/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 pursuant to section 55.1 of the Act.
Between:
Jamie McLaughlin
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATORS:
Bruce Stanton
Rebecca Hines
APPEARANCES:
For the Appellant:
Jamie McLaughlin, Appellant
For the Respondent:
Leila Pereira, Agent for the Registrar
Heard by Teleconference:
July 5, 2023
OVERVIEW
1Jamie McLaughlin (the "appellant") appeals the impoundment of her 2020 Kia Telluride on June 17, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA").
2The appellant appeals on the ground that the impoundment will result in exceptional hardship.
ISSUES
3The issue in dispute is:
a. Will the impoundment of the appellant's vehicle result in exceptional hardship?
RESULT
4We find the impoundment will not result in exceptional hardship and therefore confirm the impoundment.
ANALYSIS
5The appellant's vehicle was impounded pursuant to s. 55.1(1) 2 of the HTA, because her spouse was driving the vehicle in contravention of a condition imposed on his driver's licence which required that it be equipped with an ignition interlock device.
6The respondent presented unrefuted evidence that the spouse's licence was subject to a condition for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.
7The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the "Tribunal") that the Registrar release the vehicle.
8A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s. 50.2(3)(d), i.e. that the impoundment will result in exceptional hardship.
9For her appeal to succeed, the appellant must prove on a balance of probabilities that the impoundment will result in exceptional hardship.
Issue 1: Will the impoundment of the vehicle result in exceptional hardship?
10We find the impoundment will not result in exceptional hardship.
11Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the HTA. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.
12Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option such as using another vehicle and making arrangements to manage without any motor vehicle during the impound period.
13Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may we consider other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
The appellant has alternatives to the impounded vehicle.
14Overall, we find the appellant to be a credible witness and that she was honest and forthright during her testimony. The appellant and her spouse have a blended family consisting of four children. The appellant has two daughters from her previous marriage ages 13 and 10, her spouse has a daughter aged 6, and they share a 4-year-old son. When school was in session the children either took the school bus or walked to school or daycare.
15The appellant submits that although there is a second vehicle in the household, the impounded vehicle is the only vehicle large enough to transport their entire family. Further, eight months ago, the father of her two daughters tragically passed away and the vehicle is needed to transport both herself and her two daughters to grief counselling. They live in Stittsville which is a small town outside of Ottawa, and the public transit available can take hours to navigate what should be a 20-minute drive to work. Not having a vehicle has also interfered with the appellant's ability to volunteer at the foodbank and her ability to carry out the couple's part-time job attending fairs and events. Finally, the family only have a second, five-seated vehicle which cannot accommodate their whole family. This vehicle is equipped with the interlock device which allows the spouse conditional driving privileges.
16The appellant testified that she and her spouse work full-time for the government and that she has worked from home since the pandemic. Her employer recently put a policy in place that requires employees to commute into the office two to three days a week, but her employer has accommodated her due to the recent death of her children's father. Her spouse also works remotely two to three days a week. The appellant and her spouse also work part-time for a company, where they go to events in early spring and summer and deliver and promote non-alcoholic craft beer. This is not their primary source of income, and these events take place on weekends throughout the summer. As a last resort, the appellant acknowledged they could rent a car to attend these events, but this would not make financial sense due to what they are paid for this part-time work. The appellant also volunteers at the foodbank and has been unable to carry out this work as a result of the loss of her vehicle, which has had a negative impact on the community.
17We acknowledge that the impoundment of the appellant's vehicle has caused stress and inconvenience during a difficult time in life. Having said that, we find that the appellant has alternatives to the impounded vehicle for the following reasons:
i) The family has a second vehicle. Although, the appellant has difficulty managing the interlock device, it is available to her, and the spouse is able to drive the vehicle to and from appointments and to pick up any necessities;
ii) There are other means of transportation available such as public transit, Uber, Taxis and Car Rentals. Despite the fact that public transit is inconvenient and there are expenses associated with the other options these are alternative means of transportation;
iii) They have the support of grandparents who live nearby who have been able to pitch in and help when needed; and
iv) When school was in session, the children either took the school bus or the school and daycare was within walking distance.
18Since the impoundment, neither the appellant or her spouse have missed any time off work, nor have the children missed any time off from school. Further, to date three of the children's grief counselling sessions have been missed but have all been rescheduled. We find there are other means of transportation available to the appellant to avoid missing future appointments within the impoundment period.
19The appellant states that she needs the impounded vehicle for meeting her transportation needs and cannot afford the extra costs associated with renting, Uber, or Taxi. However, she has access to these services as alternatives to the impounded vehicle.
20As discussed above, to succeed in meeting the exceptional hardship test, the appellant must prove, on a balance of probabilities, that she is without alternatives to the impoundment.
21We find that although the impoundment has caused extra stress and inconvenience, the appellant has alternatives to the impounded vehicle, and therefore fails to meet the threshold for exceptional hardship.
CONCLUSION
22We find the appellant has not proven the impoundment will result in exceptional hardship under the provisions of s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER
23Pursuant to subsection 50.2(5) of the HTA, we confirm the impoundment of the appellant's vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Bruce Stanton
Adjudicator
__________________________
Rebecca Hines
Adjudicator
Released: July 7, 2023