Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 14986/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:
Sarah Kralik
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATORS: Bruce Stanton Rebecca Hines
APPEARANCES:
For the Appellant: Sarah Kralik, Appellant
For the Respondent: Leila Pereira, Agent for the Registrar
Heard by Teleconference: July 7, 2023
OVERVIEW
1Sarah Kralik (the “appellant”) appeals the impoundment of her 2013 Dodge 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 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.
3The appellant appeals on the grounds that the vehicle was stolen at the time of the impoundment and that the impoundment resulted in exceptional hardship. The appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2, for the Tribunal to order the vehicle released.
ISSUES
4The issues in dispute are:
- Was the vehicle stolen at the time of the impoundment?
- Will the impoundment result in exceptional hardship?
RESULT
5For the reasons discussed below, we find that the appellant has met her burden and demonstrated that the impoundment will result in exceptional hardship. Since we have determined that the appellant meets the test for exceptional hardship, we need not address whether the vehicle was stolen. The Registrar is thereby ordered to release the vehicle.
ANALYSIS
Circumstances of the impoundment
6Under s. 55.1 of the HTA, 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.
7At the time of the impoundment, Joseph March (the “ex-spouse”), was driving the subject vehicle while his licence was under suspension.
8The respondent presented unrefuted evidence that the ex-spouse’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the HTA, at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.
The impoundment will result in exceptional hardship
9We find the impoundment will result in exceptional hardship.
10A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds set out in subsection 50.2(3) of the HTA. The appellant relies on s. 50.2(3)(d), i.e., that the impoundment will result in exceptional hardship.
11A regulation made under the HTA, O. Reg. 631/98 (the “regulation”), sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
12Section 10(1) of the regulation requires the Tribunal to first consider whether there is an alternative to the impounded vehicle and it is the appellant’s burden to show, on a balance of probabilities, that there is no alternative to the impounded motor vehicle.
13Only if there is no alternative to the impounded vehicle may we consider other consequences of the impoundment in meeting the exceptional hardship test, such as financial or economic loss, or loss of education. Subsection 10(1) also requires that if no alternative is available, we must consider if the impoundment will result in a threat to the health and safety of a person who is usually transported by the impounded vehicle.
The appellant has no alternatives
14As discussed above, to rely on s. 10(1) as a basis to meet the exceptional hardship test, we must conclude there is no alternative means of transportation, and that the impoundment could pose a threat to the health and safety of another person. To show no alterative is available under s. 10(1), the regulation also stipulates, in s. 10(4), that the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate or address a threat, risk or loss to a person referenced in s. 10(1)(a).
Threats to health and safety
15We find that the appellant lacks alternatives to adequately prevent a risk to hers and her children’s health and safety.
16We find the appellant to be a credible witness. She testified and submitted documentary evidence that she is a single mother of three young children: 4-year-old twins and a 5-year-old. She is separated from their father who sees the children sporadically and offers little support. The appellant’s 5-year-old attends school when it is in session and the twins attend a daycare, Monday to Friday throughout the year, which is 3 km away from her home. The appellant submits that the impoundment of her vehicle and the lack of alternatives is posing risks to hers and her children’s health and safety.
a. She is unable to get her four-year-old twins to daycare which is resulting in a developmental delay because they attend for social development and therapeutic purposes. If the twins have any more than 25 absences the appellant will lose her spot at the daycare. The twins are slated to begin junior kindergarten this fall. The Transition to School reports submitted by the appellant speak to the social and speech barriers the twins are encountering and the necessity of their participation prior to the school year beginning. Their difficulty in expressing themselves orally sometimes results in their rising frustration and getting upset. For example, it will sometimes be “difficult to understand him when he talks and [he] sometimes gets frustrated with this … will get upset and have tantrums …He isn’t able to verbalize what is wrong with him.”
b. The twins were referred to attend smallTalk, a speech language therapy program offered by Huron Perth Healthcare Alliance, at the daycare or their location which is 1.5 kilometres from home. Their near weekly block therapy sessions started May 29th and run through to August 21, 2023. As of June 26th, they had only received 4 of the 9 sessions. The appellant testified that she cannot get them to speech therapy without her vehicle.
c. She has mental health issues and recently suffered the loss of three immediate family members. She is trying to attend grief counselling and has missed important counselling sessions. The impoundment and the lack of adequate alternatives cause her to choose between her mental health appointments and the twins’ daycare/speech therapy appointments. She can’t do both. She has gone “a long time without appointments”.
d. She has frequent medical appointments in Toronto and Kitchener and has missed important dental appointments which has resulted in limited diet because she can only chew soft food. Further, she has to travel to Toronto because she receives free dental care.
e. The family relies on a foodbank for basic nutritional necessities, and she has been unable to drive to pickup supplies. Her lack of access to nutritional food for herself and her children may result in malnutrition and health issues for the whole family.
17We find the appellant meets the test in s. 10(4) as she has demonstrated that she has explored and inquired into every reasonable option to the impounded vehicle that would be an adequate alternative to prevent these kinds of risks to herself and family members who usually rely on the impounded vehicle for transportation.
18For example, she has considered friends and family members helping with the driving, but she is new to Stratford community and has not yet developed a friend network. No family members reside in the Stratford area that could help with transportation or caregiving. Her only close relative left is her father, who lives one hour drive away. The appellant receives very limited caregiving support from the children’s father and no financial support.
19The appellant has researched public transit options. Stratford has a bus service; however, the appellant submits that to get the children from her home to the daycare by bus is a one and half hour trip one way, which is too time consuming and difficult to navigate with three small children. As discussed above, the excessive time on buses will also impose on the appellant’s time for her own medical appointments.
Lack of financial means limits alternatives
20The appellant has inquired into taxi/Uber or rental cars and found these options to be unaffordable.
21The appellant’s financial means are limited. Her income comes exclusively from Ontario Works and the Canada Child Benefit. After rent, utilities and insurance are paid there is little money left over. The appellant submitted financial records and correspondence from Ontario Works which confirm her financial situation.
22We find the appellant does not have the financial resources to rent a vehicle for the impound period or take taxis or Uber to and from daycare, medical appointments, and the foodbank.
23In summary, the appellant submits that the only affordable alternative to the impounded vehicle available to her is public transit, but the lack of service makes it inadequate as a means to mitigate against the risks to hers and her children’s health and safety. We find in this case that public transit fails to meet the “adequately mitigate” test in s. 10(4). With no other affordable transportation available to her, we find the appellant has no alternative to the impounded vehicle.
24We find that the appellant has no alternative and therefore the impoundment poses a threat to hers and children’s health and safety as set out in s. 10(1)(a) of the regulation. The appellant has satisfied s. 10(4) of the regulation in demonstrating that she has inquired into alternative means of transportation in an effort to mitigate the risks to health and safety. Accordingly, we find that the impoundment will result in exceptional hardship.
The impoundment will result in financial loss and loss of education
25We find that the impoundment will result in financial loss and loss of education and will therefore result in exceptional hardship.
26Section 10(3) of the regulation sets out that the Tribunal may consider financial or economic loss to any person (s. 10(2)(b)), or loss of education to any person (s. 10(2)(d)), when there is no alternative to the impounded vehicle, the loss is immediate, significant and lasting, and the loss is suffered by a person(s), other than the driver whose licence is suspended, who is ordinarily transported by the impounded vehicle.
27As set out above, the appellant testified that the impoundment will result in the appellant’s children being unable to attend daycare or speech therapy sessions for the duration of the impoundment period. It will result in a loss of education and developmental delay and could lead to the children losing their spot within the daycare. In addition, the appellant’s documentary evidence suggests an urgency for the twins to attend daycare and speech therapy so that they will be prepared for junior kindergarten this fall.
28The appellant testified that the children have been unable to attend daycare or speech therapy since the vehicle was impounded. The loss satisfies the “immediate” criteria.
29The loss is also significant and lasting. The Transition to School reports from April 2023, as discussed above, speak to the urgency of the twins attending daycare for socialization development and speech therapy to help them express themselves, before they head off to junior kindergarten this fall. The Transition to School reports speak to the significance of these programs for the twins’ successful start to school, and indirectly, the consequences of them not attending and being unprepared to integrate into a more formal elementary school setting starting this fall.
30The appellant testified that she will also lose time for her own preparations for a college program this fall.
31We discussed the appellant’s lack of financial resources to consider transportation alternatives previously. She also lacks the financial means to pay the impoundment fee at the end of the impound period. She testified that her ex-spouse has no means to help pay the impound fees. We find that the impoundment will impose further financial loss when it becomes time to get the vehicle released from impoundment. The appellant testified that she has no means to pay the impoundment fees. If she is unable to pay at the end of the 45 days, the vehicle will remain impounded and generate higher fees going forward. The impoundment imposes a financial loss that will further complicate and put a strain on the family as they try to face the challenges of physical and mental health, preparing for school this fall, grieving the loss of family, and the loss of their only vehicle.
32The appellant further satisfies the criteria in s. 10(3) in that the loss will be suffered by the appellant and the children, and not the ex-spouse, who was driving with a suspended licence.
33We have already determined that the appellant has no alternative, and we further find that the impoundment will cause financial loss and the loss of education. The impoundment will therefore result in exceptional hardship.
CONCLUSION
34We conclude that the impoundment will result in exceptional hardship. As a result, we do not find it necessary to address whether the vehicle was stolen.
ORDER
35Pursuant to s.50.2(5) of the Highway Traffic Act, we direct the Registrar to release the impounded vehicle.
LICENCE APPEAL TRIBUNAL
Bruce Stanton Adjudicator
Rebecca Hines Adjudicator
Released: July 14, 2023