Katrina A. Kelly v. Registrar of Motor Vehicles, 2024 CanLII 28805

Licence Appeal Tribunal File Number: 15662/MVIA

In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an Impoundment of a Motor Vehicle pursuant to Section 55.1 of the Act.

Between:

Katrina A. Kelly

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Katrina A. Kelly

For the Respondent:

Leila Pereira, Agent

Heard:

March 4, 2024

OVERVIEW

1The appellant, Katrina A. Kelly, appeals the 45-day impoundment of her 2018 Nissan Rogue motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The appellant’s vehicle was impounded on February 17, 2024, after police found it being operated by her friend and casual mechanic, K.C., while his driver’s licence was under a Criminal Code suspension. The appellant states that she left her vehicle with K.C. for the sole purpose of performing a repair and not for him to drive the vehicle. She states that K.C. took the vehicle without her permission and knowledge.

3K.C. was pulled over by police around the corner from where the appellant dropped the vehicle off. His licence is currently under a Criminal Code suspension thereby leading to the 45-day impoundment of the appellant’s vehicle.

4The appellant filed her appeal with the Licence Appeal Tribunal (the “Tribunal”) on February 20, 2024. In addition to her position that her vehicle was stolen, the appellant is also relying on the ground of exceptional hardship. She states that her financial situation is precarious, and that the loss of the vehicle has also placed her job in jeopardy as she works as a Mental Health and Addictions counsellor which requires that she transport clients to outings, appointments, pick up medication, and other vital duties.

5Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension at the time for certain Criminal Code offences. In this case, K.C.’s driver’s licence was under an indefinite suspension for failing to provide a breath or blood sample. As a result, police impounded the vehicle pursuant to section 55.1(1) of the Act.

ISSUE

6The appellant appeals the impoundment pursuant to s. 50.2(3)(a) of the Act on the grounds that the motor vehicle was stolen at the time it was detained in order to be impounded.

7The appellant also appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on section 50.2(3)(d) of the Act.

8The onus of proving these grounds of appeal rests with the appellant. To succeed in her appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.

RESULT

9Having considered the parties’ evidence and submissions, I find that the appellant has proven on a balance of probabilities that the impoundment will result in exceptional hardship. Since the appellant only needed to succeed on one of the two grounds of appeal, I did not consider whether the vehicle was stolen. The appellant still presented brief arguments on this ground and acknowledged that she could have taken greater care in asking to examine K.C.’s driver’s licence. K.C. was not charged with theft nor did the appellant pursue this as a cause of action.

ANALYSIS

10It is undisputed between the parties that the appellant is the owner of the impounded vehicle, that K.C. was driving it at the time it was impounded, and that K.C.’s driver’s licence was under a Criminal Code suspension at the time. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.

Has the appellant experienced exceptional hardship as a result of the impoundment?

11I find that the appellant has shown that the impoundment will cause exceptional hardship for the reasons which follow.

12As a first step, s. 10(1) of O. Reg. 631/98 (“Regulation”) sets out the factors the Tribunal is to consider when determining whether an impoundment will result in exceptional hardship. The first step under s. 10(1) is that the appellant must demonstrate there is no alternative to the motor vehicle available. Section 10(4) sets out that to show this, an appellant must establish that there are no reasonable alternatives to the impounded vehicle. Section 10(4) of the Regulation provides, as follows:

The owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period

13The appellant offered evidence to demonstrate that she has no alternative to the impounded motor vehicle.

14The appellant lives in a rural area that is not serviced by regular and reliable public transit. She is required to use her vehicle for work purposes as she is expected to assist those living with mental health and addiction issues in her role. She has explored the use of Uber but it is cost prohibitive and she states she barely has enough money to get by. Even if Uber was an option, the wait for a driver would be approximately 1 hour since she lives far from any city or town. She is also unable to afford a rental vehicle and does not have a credit card in her name which is required for a security deposit on a rental vehicle. She also does not have another vehicle available to her which she can use for work purposes. While her father does have a car, he uses it for his own employment purposes. I am satisfied that she has 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 motor vehicle during the impound period.

15Having satisfied myself that there is no alternative to the impounded vehicle available to the appellant, I must now consider under s. 10(1)(a) and (b) of the Regulation whether the impoundment will result in a threat to the health or safety of any person who is ordinarily transported by the motor vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. I may also consider, under s. 10(2) and (3), financial or economic loss, or loss of employment, but only if the owner demonstrates that:

(a) no alternative to the impounded motor vehicle is available;

(b) the loss will be immediate, significant and lasting;

(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 456/10, s. 3.

16The appellant states that she has also missed shifts at work as a result of not having her vehicle. This may potentially have a detrimental impact on the health and safety of her clients if her shifts are not covered by others. So far, she has been able to secure replacements.

17In order to make ends meet, the appellant also explained that she does work on the side where she assists an elderly woman in her community. She performs chores such as cleaning, cooking and picking up her groceries and medication. With the loss of her vehicle, the appellant has been unable to perform this work for her elderly client thereby potentially posing a threat to the health and safety of the individual.

18The appellant explained that she does not have any friends who are able to assist her with transportation. Her father is able to assist by picking up groceries for her. However, the loss of her vehicle has significantly interfered with her daily routine and providing care to vulnerable groups. She has no other alternate vehicle she can rely upon during the impoundment period.

19Finally, the appellant states that she is the most senior person at her workplace and she takes on a managerial role. For this reason, she is expected to be flexible and to respond to emergencies on a 24-hour basis. Without her vehicle, she is unable to respond accordingly which may pose a threat to her clients’ health and safety.

20I have considered whether the impoundment will result in a threat to the health and safety of anyone ordinarily transported in the appellant’s vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used. I find that there is a threat to the health and safety of the appellant’s clients, along with the elderly she assists outside of work, with the loss of the vehicle. In some situations, these individuals are transported by the appellant to and from doctor’s appointments and/or to pick up medication using the same vehicle.

21I have also considered whether I may consider whether the impoundment will result in financial or economic loss to the appellant, or the loss of employment or employment opportunity to her. I accept the appellant’s testimony that her financial situation is precarious and the impoundment may result in her inability to maintain her employment thereby making her situation worse. So far, the appellant has managed to get other staff to cover missed shifts, but she loses money from those missed shifts. At the hearing, the appellant provided details about her current financial situation which includes how much she earns compared to her outstanding debts and loans. The loss of missed shifts due to not having a vehicle, as well as potentially losing her employment altogether is possible. I find that there is evidence, especially as it relates to her employment status, that the loss will be immediate, significant, and lasting.

22Under the circumstances, I conclude that the appellant has met the burden to demonstrate that there are no reasonable alternatives available to her and that the health and safety of others who rely on the vehicle will be placed in danger due to the impoundment.

23Based on the evidence, and in accordance with s.10 of the Regulation, I find that the appellant has no reasonable alternative to the impounded vehicle and the loss of the vehicle will result in a threat to the health or safety of persons ordinarily transported by the motor vehicle, namely the clients who depend on her service. As such, I am satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.

[24]

Was the vehicle stolen at the time of the impoundment?

25Given that I have found that the appellant has proven the ground of exceptional hardship, I need not consider the ground that the vehicle was stolen.

ORDER

26For the reasons set out above, pursuant to the Tribunal’s authority under s. 50.2(5) of the Act, I order the Registrar to release the vehicle.