Kolton Heatherwick v. Registrar of Motor Vehicles, 2024 CanLII 119

Licence Appeal Tribunal File Number: 15486/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:

Kolton Heatherwick

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Kolton Heatherwick, appellant (self-represented)

For the Respondent: Ian Sookram, Agent for the Registrar

Heard by Teleconference: December 22, 2023

OVERVIEW

1Kolton Heatherwick (the “appellant”) appeals the impoundment of his 2006 Chevrolet Colbalt on December 1, 2023 for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

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”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that he satisfies at least one of the five grounds set out in s. 50.2(3) of the Act. The appellant appeals on the grounds that he was not then subject to the condition described in paragraph 2 of subsection 55.1(1) (ignition interlock device installed) under s. 50.2(3)(b.1), and that the impoundment will result in exceptional hardship under s. 50.2(3)(d).

ISSUES

4The issues in dispute are:

(a) Was the appellant, at the time his vehicle was detained for impoundment, subject to the condition under s. 55.1(1)2 of the Act that an ignition interlock device be installed in his vehicle?

(b) Will the impoundment result in exceptional hardship?

RESULT

5I find the appellant was subject to the condition under s. 55.1(1)2 at the time the vehicle was detained for impoundment, and the impoundment is not resulting in exceptional hardship. I therefore confirm the impoundment.

ANALYSIS

Circumstances leading to the impoundment

6Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension, or subject to conditions for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7The appellant was the driver of the vehicle when it was detained for impoundment. The respondent presented evidence that, at the time the vehicle was detained, the appellant’s licence was subject to a mandatory ignition interlock requirement, pursuant to s. 55.1 of the Act, arising from a Criminal Code driving offence on November 17, 2019. The vehicle was not equipped with an ignition interlock at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Issue 1: Subject to a condition in s. 55.1(1)2 – ignition interlock device

8I find that the appellant’s licence was subject to a mandatory ignition interlock device requirement at the time his vehicle was detained for impoundment.

9The appellant testified that he did not believe his licence was subject to an ignition interlock requirement, stating that MTO advised him it was to have been removed in 2021. He stated, “the “I” condition [ignition interlock requirement] was not supposed to be there and that it remains on his licence is a big misunderstanding.”

10The appellant testified that he was convicted of an impaired driving offence in early January 2020 and that he waited until the end of his two-year suspension before driving again. He paid the applicable fines and reinstatement fees and completed the Back on Track program as required, early in 2021. After completing the program, including the six-month waiting period after taking the program, he visited Service Ontario to get his licence reinstated. He testified that the Service Ontario agent said nothing of any further conditions. He started driving again, early in 2022.

11The respondent submits that following his driving conviction on January 10, 2020, the appellant’s licence was suspended until September 24, 2021. During that year and nine months, the appellant served his one-year licence suspension and the six-month waiting period after completing Back on Track. It submits that the “I” condition was then applied to the appellant’s licence starting September 24, 2021 for one year i.e. expiring on September 24, 2022.

12The respondent submitted that the appellant would have been sent a package of information following his driving conviction explaining the steps involved in getting his licence reinstated. These steps would have included attending Back on Track and serving a period of time subject to the “I” condition. The appellant would have also received a reminder letter in March 2022, that the “I” condition was set to expire September 24, 2022, and that a Substance Use Assessment Form, enclosed in the package, would need to be completed by a physician, specialist, or nurse practitioner before the “I” condition would be removed.

13The respondent submitted that “I” condition remains attached to a licence even after the 12-month expiry date, until a completed Substance Use Assessment Form has been reviewed and deemed acceptable by national medical standards.

14The appellant testified that he does not recall receiving either package of mailed information (suspension/reinstatement package early in 2020, or the reminder in March 2022) in relation to his licence status or steps for reinstatement. The appellant confirmed that the mailing address on his licence and used for mailed materials has not changed since the time of the driving conviction. The appellant recalls speaking with an agent of MTO who indicated he could get his licence back after completing the Back on Track program and he heard no reference to the ignition interlock requirement.

15I find the appellant’s licence was subject to the “I” condition. The appellant provided no evidence to refute the documentary evidence entered by the respondent that the condition applied to his licence at the time the vehicle was detained for impoundment.

The impoundment was avoidable

16The appellant was not sufficiently attentive to the notices and information sent him by MTO, did not take sufficient steps to understand the process of reinstatement, and did not review the conditions of his licence card. For example, the appellant’s licence card would have included an “X” on its face, next to the word “Conditions”. Where an “X” is placed on the face of a licence card it indicates the licence is subject to a condition(s) which is/are then listed on the back side of the card.

17The appellant stated that he missed an opportunity to get his licence reinstated earlier than the two years he waited. This opportunity existed but was not used because the appellant did not understand the process of reinstatement. Even if the mail notices were missed, a website or phone inquiry to MTO could have provided the appellant with the information he needed not only to potentially get his licence reinstated sooner, but to have the ignition interlock condition removed and avoid his vehicle being detained for impoundment on that basis. These steps were not taken.

Issue 2: Exceptional Hardship

18I find the impoundment is not resulting in exceptional hardship because the appellant has alternatives and has not demonstrated that he’s looked into every reasonable alternative.

19Ontario Regulation 631/98 (the “Regulation”), under the Act, sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship. Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle. Only if there is no alternative may I consider other consequences of the impoundment such as financial or economic loss or loss of employment or education, in determining whether the exceptional hardship test has been met. In order to establish that there is no alternative, s. 10(4) of the Regulation requires the owner of the impounded vehicle to demonstrate that every reasonable alternative option has been explored and inquired into.

20The appellant submitted that he was released from his sole employment as a result of the impoundment. He testified that he only has one vehicle, being the impounded vehicle, and relies on it to get to and from his work as a ceramic tile installer, 30 minutes drive from home, five days per week. From the place of employment, the appellant uses a company vehicle to serve customers at their homes and construction sites in the region. The appellant testified that since the impoundment he has successfully submitted the Substance Use Assessment Form noted above, and his licence has been reinstated. He is now licensed to drive but has no vehicle to get to and from work. The employer will rehire the appellant if he can find transportation.

21The appellant testified that he lives in a rural part of Grimsby where no transit service exists and hired services such as Uber and taxi services are more than 30 minutes distant and thereby too expensive. He testified that renting a car would be too expensive and he cannot afford it.

22The appellant lives with his parents, each of whom has their own vehicle. He testified that his parents’ vehicles are not available to him because the parents are gone from early in the morning until late in the evening, every day. The appellant stated he has no other family or friends he can rely on for assisting with his transportation needs. The appellant reports to be in good health and has not missed any medical appointments. He testified that since the impoundment he has been walking to get his household needs such as groceries and pharmacy items. During the two-year period when his driving privileges were suspended, the appellant worked at a local Rona store by walking to and from work.

23He testified that the fees for impoundment are unaffordable and represent a financial hardship.

24The respondent submitted that the appellant does not meet the threshold in the Regulation for exceptional hardship because he will be offered his job back if he is able to get transportation to and from work, and he has alternatives to the impounded vehicle, such as walking, to get his household needs.

25I find the impoundment is not resulting in exceptional hardship because the appellant has alternative means of transportation and has not demonstrated, pursuant to s. 10(4) of the Regulation, that every reasonable alternative has been explored and inquired into.

26Rental vehicles and fee-for-service transportation (Uber and Taxi) are available to the appellant. These services carry an expense however the appellant did not indicate whether he had considered the cost of these alternatives in relation to the income he is surely losing by not working. The appellant has walked to and from work, albeit at a different employer, in the past. He did not indicate this was an option (temporary alternative employment) being explored or inquired into. The appellant reports that both his parents’ vehicles are unavailable as a possible means for him to get to and from work, but he testified that was not an option he cared to explore or inquire into. He said he would not ask them for this kind of assistance on the basis they were too busy. The appellant gave no indication he’ made inquiries into other means to get to and from work such as with a co-worker (i.e. by car-pooling).

27As discussed above, only if there is no alternative, may I consider other consequences of the impoundment such as economic loss. The appellant submits that the lack of transportation to visit friends is also a hardship however, I cannot consider inconvenience in determining exceptional hardship.

28Although the appellant claims no alternative, he has not demonstrated that every reasonable option or alternative transportation has been looked into and explored. In addition, the appellant has alternatives, such as walking, to acquire his household needs or even seek alternative employment while the vehicle is impounded. Therefore, I find the impoundment is not resulting in exceptional hardship.

CONCLUSION

29I find the appellant did not meet his burden of proving that the licence was not subject to a condition in paragraph 2 of subsection 55.1(1), relating to an ignition interlock device, or that the impoundment is resulting in exceptional hardship as defined in the Regulation.

ORDER

30Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.