Carly Smith v. Registrar of Motor Vehicles, 2024 CanLII 10547

Licence Appeal Tribunal File Number: 15569/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:

Carly Smith Appellant

And

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Carly Smith, Appellant

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: January 24, 2024

OVERVIEW

1Carly Smith (the “appellant”) appeals the impoundment of her 2016 Dodge on January 14, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). At the time of the impoundment, her partner was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

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 Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

3A 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). namely that the impoundment will result in exceptional hardship.

ISSUES

4I have been asked to decide:

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

RESULT

5I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I direct the Registrar to release the vehicle.

ANALYSIS

I find the impoundment of the vehicle will result in exceptional hardship.

6Section 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 Act. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

7Subsection 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.

8Only 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 does not have any alternatives to the impounded vehicle.

9The appellant argues that the impoundment of the vehicle will result in exceptional hardship because she is a single mother of three young children ages 4, 7 and 9, and she requires her vehicle to get to and from work, take her children to school, medical appointments and sports activities. She also requires the vehicle to get basic necessities such as groceries and prescription medication. She submits that she has no alternative to the impounded vehicle during the impound period.

10The respondent argues that the appellant does not meet the test for exceptional hardship because she also owns another vehicle, a 2003 Dodge truck. Further, she has obtained rides from a neighbour and co-worker and can rent a vehicle during the impound period. As a result, she has access to alternative modes of transportation during the impound period and does not meet the test for exceptional hardship.

11I agree with the appellant and find that she does not have any alternatives to the impounded vehicle during the impound period for the following reasons.

12The appellant testified that she lives in Arthur, Ontario, which is a small, rural town which does not have public transit, taxis, or Uber. Further, she has not looked into renting a vehicle during the impound period because it is unaffordable. She maintains that since the impoundment she has missed three days of work in a period of less than eight days since her vehicle was impounded. She was able to get a ride from a neighbour and co-worker on two occasions, but these were favours and are not reliable because she works a different shift. In addition, she recently obtained this job four months ago. Her new employer has been understanding so far because she told them she was sick; however, she fears that if she misses any more time off work, then she will lose her job. Her workplace is a 12-minute drive from her home, and she is not able to walk to work because it is unsafe in that her workplace is located off a country highway which is used by transport trucks. She also has to coordinate taking her children to school on her way to work.

13The appellant submits that since the impoundment she has had to walk to the grocery store and pharmacy, which is a 40-minute walk in inclement weather with her three young children to get basic necessities. In addition, she does not have family and friends nearby to assist her with childcare and transportation. Her sister works in Mississauga, which is an hour and half drive from Arthur. Moreover, her children have been missing their extracurricular activities. Her son has not been able to play basketball and she fears he will be kicked off the team. Her daughter has also been unable to attend figure skating. She also had to reschedule a specialist appointment for her son in Guelph, which took six months to obtain and has been rescheduled for the end of January, which is during the impound period. At this time, she has no way of getting her son to this appointment. She also maintains that the truck identified by the respondent has not been on the road for years and it would take significant expense to fix it, and she does not have the financial resources.

14I find the appellant to be a credible witness and find that she was forthright about the many challenges she has faced since the impoundment. I find she has established that there are no alternatives to the impounded vehicle during the impound period because: a) she does not have access to public transportation, taxis, or Uber because she lives in a remote rural location; b) although she has obtained a few rides from a neighbour and a co-worker as a favour, I find this is not a reliable alternative mode of transportation during the impound period; c) I find that having to walk 40 minutes to a grocery store or pharmacy in inclement weather with three small children is not a viable alternative to the impound vehicle; and d) I believe the appellant that the 20-year-old truck is not operational and that she does not have the financial means to make it roadworthy. For these reasons, I find the appellant has no alternative mode of transportation during the impound period.

Impoundment Poses a Threat to Health and Safety

15Since the impoundment, the appellant and her ex-spouse, the driver of the vehicle, are no longer together. I find the appellant lacks alternatives to prevent a risk to hers and her children’s health and safety during the impound period. Although the appellant acknowledged that she has access to emergency services, her son has already missed a specialist appointment in Guelph which took six months to obtain. The appellant was able to reschedule this appointment, but it is within the impound period. As a result, I find she has no reliable means of getting her son to the rescheduled appointment. I find this poses a health and safety risk to the appellant’s son. Further, I find her three children are missing out on their extracurricular activities which may pose future risks in their development and well-being. I also find that expecting three young children to walk to the grocery store or pharmacy 40 minutes away in inclement weather to be an added safety risk. Further, I find the appellant lacks alternatives because she does not have family and friends close by to provide childcare and they are too young to be left on their own.

16I 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 children who usually rely on the impounded vehicle for transportation.

17I 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.

Impoundment will likely result in financial loss

18I find the impoundment will likely result in financial loss.

19Section 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, other than the driver whose licence is suspended resulted in the impoundment, who is ordinarily transported by the impounded vehicle.

20As highlighted above, the appellant recently obtained new employment as a factory worker four months prior to the impoundment. Further, she has already missed three days of work in a short period of time because of the impoundment. I find that the appellant is at risk of being terminated from her employment because she has no reliable means of getting to work. I find this will have financial consequences for not only the appellant but will impact her ability to provide for her three children. In addition, I find the loss will be immediate, significant and lasting because the appellant will not be able to provide for her three children.

21In addition, I find the appellant satisfies the criteria in s. 10(3) in that the loss will be suffered by the appellant and children, and not the ex-spouse, who was driving with a suspended licence.

22For the reasons highlighted above, I have determined that the appellant has no alternative to the impound vehicle during the period of impoundment. Further, I find the impoundment will cause risks to the health and safety of the appellant’s children and also result in financial loss. The impoundment will therefore result in exceptional hardship.

CONCLUSION

23I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

ORDER

24Pursuant to s.50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.