Diane Himes v. Registrar of Motor Vehicles, 2024 CanLII 118757

Licence Appeal Tribunal

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 that Act

Between:

Diane Himes Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Diane Himes For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: November 21, 2024

OVERVIEW

1Diane Himes (the “appellant”) appeals the 45-day impoundment of her 2018 GMC Yukon (the “vehicle”) on October 25, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by J.N. (the “driver”) on whose licence was a condition that prohibits him from driving a vehicle that does not have an interlock ignition device, and the appellant’s vehicle was not equipped with such a device.

2The appellant appealed the impoundment to the Tribunal on October 25, 2024.

ISSUES

3The issue to be determined is:

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

RESULT

4I conclude that the impoundment will result in “exceptional hardship”, and I direct the Registrar of Motor Vehicles (the “Registrar”) to release the impounded vehicle.

ANALYSIS

Will the impoundment result in exceptional hardship as that term is defined in the Act and the Regulation?

5The impoundment of the vehicle will result in exceptional hardship.

6Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative available to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate that they have considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any vehicle. If I find that there is an alternative to the impounded vehicle, then the appeal will fail and I need not consider any other requirements of the test for exceptional hardship.

7If it finds there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle or to the public health and safety or the environment or property of a community in whose service the motor vehicle is ordinarily used. The Tribunal may also at that stage consider if there would be an immediate, significant and lasting financial or economic loss or loss of employment or education (or an opportunity for the same) to any person ordinarily transported by the vehicle other than the suspended driver.

Evidence of the appellant

8The appellant submits that the impoundment will result in exceptional hardship as she has no reasonable alternative to the vehicle. The appellant testified that she is lives in Washago, Ontario with her partner, five of their children, ages 10, 11, 12, 14 and 16, as well as the appellant’s grandmother. The appellant is employed as a Personal Support Worker in a nursing home in Bracebridge, Ontario, which is a 30-minute drive from Washago “in good weather.”

9The appellant testified that she owns a second vehicle, a 2019 Ford Sprinter. However, that vehicle is not operable as it requires expensive transmission repairs which neither she nor her partner can afford.

10The appellant’s children have not missed school or other activities during the impoundment as they take the school bus to and from school, and the local “hockey families” transport them to their hockey games and practices. Also, none of the children, the appellant, or her partner have missed any medical appointments. The appellant’s grandmother, who is 87 years old, and does not drive, cancelled a medical appointment but was able to reschedule it to January 2025.

11With respect to the possibility of a rental vehicle, the appellant testified that she does not have the ability to use a credit card to obtain a rental, as her card is maximized to its limit.

12The appellant testified that there are no Uber, taxi nor public transit services in their area. A long-distance bus service facilitates Washago twice per day, but that service does not assist with respect to the appellant’s ability to get to and from work. There is also no family or friends who could help with the appellant’s transportation needs. That is, except for the appellant’s mother.

13The appellant testified that although she is a part-time worker at the nursing home (with 4 mandatory shifts within a 2 week pay period), she depended on working

optional shifts which are readily available to her. She testified that, to the date of the hearing, she has not missed any of her mandatory shifts, as her mother, who lives in the Kawartha Lakes region, has driven the appellant to and from her work for the mandatory shifts. The appellant stated that her mother drives 1.5 hours each way from her home in Kawartha Lakes to Washago in order to drive the appellant to and from work and also to pick up the necessary groceries and incidentals for the family.

14The appellant testified that her mother will be unable to continue to make the 1.5-hour-trip indefinitely. Also, according to the appellant, she will be unable to afford the impoundment fees in order to retrieve the vehicle. The appellant further stated that, as a part-time staff member, she is expected to accept optional shifts as part of her employment. She testified that, as she is unsure as to how she would be able to even attend her mandatory shifts without her mother’s continued assistance, it is likely that she will lose her employment in Bracebridge.

Position of the Registrar

15The Registrar presented evidence that the vehicle was stopped by police while it was being driven by a person, J.N., on whose licence was a condition that prohibits him from driving a vehicle that does not have an interlock ignition device. I am therefore satisfied that the vehicle was validly impounded.

16The Registrar submits that the appellant has the ability to obtain groceries and incidentals. Her children have not missed school or extra-curricular activities. nor has the appellant missed any mandatory work shifts as her mother has transported her to and from her employment.

17The Registrar submits that, due to the above, the appellant has a reasonable alternative to the impounded vehicle.

Conclusion re: Reasonable Alternative

18I agree with the Registrar that there are reasonable alternatives to facilitating the needs of the children during the period of the impoundment. However, the evidence before me establishes that the only alternative with respect to transportation to and from the appellant’s employment is for her mother to drive 1.5 hours to the appellant’s home, then 30 minutes to the nursing home in Bracebridge. I do not find this to be a reasonable alternative, and, according to the appellant, it is not sustainable. I therefore conclude that there is no reasonable alternative to the impounded vehicle.

Conclusion re: Exceptional Hardship

19I am also satisfied that, as there is no reasonable alternative, there would, on a balance of probabilities, be an immediate, significant and lasting financial or economic loss or loss of employment impacting the appellant. I accept that the appellant is unlikely to be able to continue to fulfil her mandatory work shifts, much less optional ones. This creates an immediate and continued financial loss as well as the probability of her loss of employment due to the impoundment of the vehicle.

20.As there is no reasonable alternative to the impounded vehicle and as, on a balance of probabilities, the impoundment is causing and will cause an immediate, significant and lasting financial or economic loss or loss of employment, I grant the appeal.

I ORDER AS FOLLOWS:

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