Licence Appeal Tribunal File Number: 15278/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:

Lilian Hann

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Lilian Hann, Appellant

For the Respondent: Leila Pereira, Agent for the Registrar

Heard by Teleconference: October 12, 2023

OVERVIEW

1Lilian Hann (the “appellant”) appeals the impoundment of her 2016 Jeep Patriot on September 25, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, her ex-spouse was driving the vehicle while their driving privileges were under suspension.

2The appellant appeals on the grounds that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the HTA. As a result, I order the Registrar to release the vehicle.

ANALYSIS

5The respondent presented unrefuted evidence that the ex-spouse’s licence was suspended 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) as noted above.

The impoundment of the vehicle will result in exceptional hardship.

9Section 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.

10Subsection 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 planning to manage without any motor vehicle during the impound period.

11Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may I consider the 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 no alternatives to the impounded vehicle during the impoundment period.

12The appellant testified that there is no alternative to the impounded vehicle because she has significant health issues which result in very limited mobility. For example, she had neck and spinal surgery over one-year ago which has resulted in significant physical limitations. Further, she is scheduled to have knee replacement surgery in December 2023 and cannot walk as a result. She acknowledged that TTC is available to her because she lives in Scarborough, however, this is not a viable option because she cannot tolerate the three-minute walk to the bus stop because of her disability. In addition, she receives Ontario Works and does not have the financial resources to pay for taxis, Uber, or a car rental during the impound period.

13The appellant submits that she relies on the impounded vehicle to get to her medical appointments and attend physiotherapy. Since the impoundment she has missed six out of nine physiotherapy appointments and had to rely on a friend to get to a specialist appointment. She has also had to rely on her daughter to deliver necessities such as groceries and prescription medications, however, this has been difficult because her daughter does not drive and relies on public transit to assist her. She does not have any other family supports nearby to assist her with transportation.

14The respondent argues that the appellant has alternative means of transportation available to her during the impound period. For example, she has access to TTC and Wheel-trans is another option available to her. Moreover, she has had the assistance of her daughter and a friend to get necessities and attend an appointment. Finally, she has been able to reschedule her physiotherapy appointments.

15I find that, due to the medical impact of utilizing public transit there is no reasonable alternative to the impounded vehicle for the appellant to attend required medical treatments. Further, she is a recipient of Ontario Works which pays her a monthly benefit of approximately $725.00. Therefore, I conclude that other options such as Uber, taxis and car rental would be impossible for the appellant to afford. Based upon the appellant’s testimony, I conclude that the impoundment will result in the risk to her health or safety because she has missed three quarters of her physiotherapy appointments and will continue to miss them during the impoundment period. Although Wheel-trans may be an option for public transit for people with disabilities, there is no evidence before me to support that this service would be easily accessible or that the appellant would qualify for the service within the impound period. I therefore find that appellant has met the test for exceptional hardship.

16I find the appellant has 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

17Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

Rebecca Hines, Adjudicator