Licence Appeal Tribunal File Number: 15702/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:

Patricia H. Osgood

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Patricia Osgood (self-represented)

For the Respondent:

Leila Pereira, Representative

Observers:

Jan Dymond, LAT Vice-Chair

Hande Bilhan, LAT Member

Heard by teleconference:

March 14, 2024

OVERVIEW

1Patricia Osgood (the “appellant”) appeals the impoundment of her 2017 Honda Civic on March 3, 2024 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 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 she 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 the impoundment will result in exceptional hardship, the ground set out in s. 50.2(3)(d) of the Act.

ISSUES

4The issue in dispute is:

1. Will the impoundment result in exceptional hardship?

RESULT

5The appellant has not proven that the impoundment will result in exceptional hardship. Therefore, the impoundment is confirmed.

Preliminary Issue

6Rule 23 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) requires that appeals under s. 50.2 of the Act have a hearing scheduled within 30 days of the filing of the Notice of Appeal. For this reason, the procedural and administrative elements of the hearing (production of documents, witness lists, and filing of evidence) are considered in the first portion of the scheduled hearing. There is no pre-hearing case conference. If the administrative and procedural elements are in order and the parties are sufficiently prepared, the Tribunal proceeds to hear evidence on the scheduled day of the hearing. If not, the hearing is continued on a later date, subject to the procedural orders (productions, filing of evidence, and witness lists) made at the first day of the hearing.

7During the start of today’s hearing the applicant inquired about having her daughter testify as a witness. The appellant’s daughter, Brittany, is the principal driver of the impounded vehicle.

8The respondent objected to allowing a witness at today’s hearing since it had no notice of the appellant’s intention to call a witness. The respondent did not refer me to which Rule was the basis for its objection.

9Rule 9.5.2 of the Rules states that parties to General Service (GS) matters at the Tribunal must provide to the other parties a list of witnesses whom the party may call upon to give evidence at the hearing, and a brief description of the anticipated testimony of each witness, no later than 10 days before the hearing, or at any other time ordered by the Tribunal.

10I found the appellant could call the witness for the hearing, but in keeping with the principle in Rule 9.5.2, and in order to prevent prejudice to the respondent, the hearing would need to be continued on a later date.

11Upon understanding that the matter would be continued on a later date if a witness were called, the appellant chose not to call her daughter as a witness. The hearing proceeded to hear evidence in the matter.

ANALYSIS

Circumstances leading to the impoundment

12Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle on a highway while his or her licence was under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

13At the time the appellant’s vehicle was detained, it was being driven by Mikhel Thomas McFarlane (the “driver”), a boyfriend of the appellant’s daughter, Brittany. The respondent presented unrefuted evidence that the driver’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Exceptional Hardship

14I find that the impoundment will not result in exceptional hardship because the appellant has alternatives to the impounded vehicle.

15Ontario 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 option has been explored and inquired into, including using another vehicle or arranging to be without any vehicle.

16The appellant testified that the impounded vehicle is mainly used by Brittany Osgood, her daughter. The appellant lives with her husband, Brittany, and one other adult daughter. Each of the four persons in the home ordinarily has use of their own vehicle. With Brittany’s vehicle impounded, the family is down to three vehicles.

17The appellant testified that the impounded vehicle is essential to Brittany’s work. Her job often requires her to attend different offices of her employer in North York and Pickering and help transport equipment and supplies for events she is required to attend and support.

18Since the impoundment, Brittany’s employer has accommodated her circumstances by scheduling her for work just in the Pickering office, approximately 10 km from the family’s residence in Ajax. The appellant testified that other family members are helping drive Brittany to/from work. Transit is available between Ajax and Pickering, but the appellant stated it is a 90-minute commute by transit, each way, and is impractical for transporting supplies and materials for events relating to Brittany’s work. Brittany has not lost any days of work due to the impoundment.

19The appellant testified that the impoundment has not resulted in her missing any of own health appointments and that she has not been impeded in getting household goods and supplies.

20On the question of alternatives to the impounded vehicle, the appellant states they have investigated options, but it is cost prohibitive to rent a vehicle and transit is too impractical. She is unaware of any car-pooling opportunities with Brittany’s co-workers. The appellant submits that though they have three other vehicles in the family, each of them must be available for the transportation needs of its usual driver (the appellant, the appellant’s husband and the other daughter) and is not a practical substitute for the impounded vehicle.

21The appellant submits the impoundment is resulting in exceptional hardship and seeks an order from the Tribunal to release the vehicle on that ground.

22The respondent submits the appellant has access to three other vehicles in the home and that the impoundment, though inconvenient, is not preventing the family from participating in their usual activities. It adds that neither Brittany nor other family members have missed any days of work and the family’s ability to get household goods and supplies has been unaffected by the impoundment.

23The respondent submits that Brittany has access to transit services to both the Pickering and North York locations by bus and Go-Train.

24The respondent submits that the impoundment will not result in exceptional hardship and looks to the Tribunal to confirm the impoundment.

25I find the appellant has not proven the impoundment will result in exceptional hardship. I recognize that a vehicle impoundment creates a financial burden and can impose a considerable amount of disruption and inconvenience to the vehicle owner, but the legal test for exceptional hardship can only be met if there is no alternative to the impounded vehicle. Section 10(2)(a) of the Regulation specifically excludes “inconvenience” as a basis for meeting the exceptional hardship ground.

26In this case, three other vehicles are serving the family’s transportation needs, including to help Brittany to get to and from work, attending appointments and obtaining households supplies and goods. When one of the other family vehicles is not available as an alternative, transit services, rideshare and taxis are widely available in the appellant’s area. I find that the appellant has a number of reasonable, albeit less convenient, alternatives.

27Accordingly, I find that the impoundment will not result in exceptional hardship.

ORDER

28Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.