An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Holly Gillies

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Holly Gillies

For the Respondent: Andrew Sookhoo

Heard by teleconference: September 26, 2023

BACKROUND

1Holly Gillies (the “appellant”) appeals the 45-day impoundment of her 2016 Dodge Caravan (the “vehicle”) under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on September 10, 2023. At the time of the impoundment her son, Richard Pilon, (“the driver”) was driving the vehicle while his licence was under suspension.

ISSUES

2The issue to be determined is:

i. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

3I conclude that the impoundment will result in “exceptional hardship”, and I direct the Registrar to release the impounded vehicle.

EVIDENCE AND ANALYSIS

The impoundment of the vehicle will result in exceptional hardship in accordance with s. 50.2(3)(d) of the Act.

4I find that the appellant has established on a balance of probabilities that the impoundment will result in exceptional hardship.

5The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.

6In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that they have considered every reasonable option that could reduce or eliminate a threat or loss amounting to hardship. This includes using another vehicle and making arrangements to do without a vehicle.

7In determining whether a person has suffered exceptional hardship, the Tribunal cannot consider “inconvenience to any person” as a factor (see s. 10(2) and 10(3) of the Regulation). However, if there is no alternative to the impounded vehicle available, the Tribunal may consider whether the impoundment of the vehicle will result in the risk to the health or safety of a person normally transported by the vehicle and/or whether the impoundment will result in the immediate, significant and lasting economic loss to a person normally transported by the vehicle.

8The appellant testified that she lives in Barrie, Ontario with her 17-year-old son and her 21-year-old daughter. The appellant works as a nurse at the Southlake Regional Health Centre in Newmarket, Ontario on alternating day and night sets of shifts.

9Although it is a distance from their home, her son is attending his final year at North High School in Barrie, as North High has a program that accommodates his autism. The appellant advised that she worries about him taking transit by himself due to the severity of his autism.

10Her daughter is recovering from serious injuries sustained in a motor vehicle accident. Due to her injuries, she is scheduled to attend physiotherapy four times per week, and counseling once per week. The appellant testified that her daughter’s injuries are very serious, and, as well as her physical injuries, she worries about her daughter’s mental health. She advised, in that respect, her daughter is “not the same as she was before”. Taking transit causes the daughter serious anxiety.

11The appellant’s driver’s licence was suspended on May 16, 2022 due to unpaid fines and was cancelled (due to expiry) on November 17, 2022. The appellant is hoping to renew her licence and pay the unpaid fines before the end of the impoundment period.

12Previous to the impoundment, the daughter would drive her mother to and from work in the vehicle and also transport her brother to school and herself to her medical appointments. Since the impoundment the appellant is taking GO Transit to and from her workplace although the schedule causes her to be late for night shifts. She has not missed any full shifts from work.

13Regarding the appellant’s son, when she is available, the appellant either accompanies him on transit to North High, or they may bicycle. The son has missed two days per week during the impoundment. He is able to do his work online during those missed days.

14Due to the impoundment the appellant’s daughter has attended physiotherapy only once per week via transit and has missed all of her counseling sessions. The appellant testified that, due to her daughter’s injuries, it is difficult for her to take local transit. The appellant advised that her physiotherapy appointments are a 25-minute drive from their home, but 1.5 hours via transit.

15The appellant is able to walk to obtain her groceries, incidentals and medications. She has missed one bloodwork appointment but was able to reschedule it. Although ride-sharing is available, she cannot afford the cost. The appellant advised that emergency services such as 911 are available.

16The appellant has been able to use public transportation to get to and from work. She has not missed any full shifts although she has been late for some. She is able to walk to obtain groceries and necessities and has not missed any essential medical appointments.

17Regarding her son, he has continued to attend school when the appellant’s schedule allows her to accompany him. He is able to do his work online when he is unable to attend in person.

18With respect to the daughter, she has missed three-quarters of her physiotherapy sessions, and all of her counselling sessions. The once per week transit to and from the physiotherapy appointment causes her daughter much anxiety. This, along with her daughter’s inability to attend the weekly counseling sessions, causes the appellant be increase concerned about her daughter’s mental health.

19The appellant testified that while ride-sharing is also available, neither she nor her daughter can afford the cost of utilizing that option for the daughter’s medical appointments.

20I find that, due to the medical impact of utilizing public transit and the prohibitive cost of utilizing ride-sharing, there is no reasonable alternative to the impounded vehicle for the daughter to attend required medical treatments. Based upon the appellant’s testimony, I conclude that her daughter is a person normally transported by the vehicle and the impoundment will result in the risk to her health or safety. I therefore find that appellant has met the test of exceptional hardship.

A. C. ORDER:

21Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant’s motor vehicle.