Licence Appeal Tribunal File Number: 15791/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 under section 55.1 of the Act for driving while suspended.

Between:

Marilyn Meyer

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

Marilyn Meyer, self-represented

For the Respondent:

Sadia Ashraf, Representative

HEARD: April 18, 2024

OVERVIEW

1Marilyn Meyer (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on March 24, 2024. At the time of the impoundment, Robert Puddicombe was driving the vehicle in contravention of a condition imposed on his driver’s licence which required that it be equipped with an ignition interlock device. The appellant’s vehicle is not equipped with such a device. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then subject to a condition that he only drive vehicles equipped with an ignition interlock device and on the ground that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

1. whether the appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act; and

2. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the appeal is allowed, and the Registrar is ordered to release the motor vehicle.

ANALYSIS

The appellant has established exceptional hardship according to the Act

5I find that the appellant has established that there are no alternatives to the impounded vehicle available and that the impoundment will result in exceptional hardship under the Act.

6Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

7Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Section 10(4) states that in order to show that there is no alternative to the impounded vehicle:

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.

8If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

9I am satisfied that the appellant has no alternative to the impounded vehicle within the meaning of the Regulation.

10The appellant lives in a rural area of Ontario with her husband, adult daughter, her daughter’s boyfriend, and her daughter’s three children. The youngest of the appellant’s grandchildren was born April 6, 2024 and is 12 days old on the hearing date. Her other two grandchildren are ages one and four.

11There are three motor vehicles in the household. The appellant uses one of the vehicles to get to work every day. She works in Peterborough which is a 30-minute drive from her home. The appellant’s husband uses one of the vehicles to drive himself and the daughter’s boyfriend to work every day. They work in Lindsay which is a 45-minute drive from their home. The third vehicle, which is the impounded vehicle, is normally used by the appellant’s daughter to transport her children to appointments, do the grocery shopping, and other daily activities.

12The youngest grandchild is suffering from jaundice. She has had to be taken to hospital on several occasions since her birth because she has been listless and not feeding well in addition to being significantly discoloured. She has had to be treated at hospital on those occasions and was admitted once for treatment and observation. I accept that the appellant’s granddaughter’s condition represents a significant health concern.

13On the occasions that the granddaughter had to be taken to hospital, the appellant has driven home from work and then taken her daughter and granddaughter to hospital. The nearest hospital is in Peterborough about 30 minutes from their home. This is something that the daughter would normally do on her own using the impounded vehicle. As a result of the impoundment, not only does it take longer to get the appellant’s granddaughter the medical attention she needs on those occasions, but the appellant also has had to miss work.

14According to the appellant, she is living paycheque to paycheque and has significant debts. She is unable to afford to have her daughter use taxis or Ubers to attend hospital and she is unable to afford to rent a vehicle while the other one is impounded. She is concerned that continuing to leave work in this fashion will impact her employment.

15In addition, the appellant testified that she has a significant pain condition which affects various parts of her body and for which she attends hospital in Oshawa every Friday to receive injections for the pain. The hospital in Oshawa is about 45 minutes from her home. The appellant says that she cannot attend these appointments while the vehicle is impounded because she cannot leave her daughter without a vehicle for that long in case her granddaughter needs to be taken to hospital. The appellant has missed two appointments so far because of the impoundment and will continue to miss appointments if the vehicle remains impounded. As a result, the appellant’s pain complaints have, and continue to become, worsened and she says that she is currently is in a very significant amount of pain.

16Again, the appellant testified that she is unable to afford to take taxis or Ubers to her medical appointments in Oshawa and is unable to afford to rent a vehicle. Instead, the appellant has decided to remain available for her daughter and granddaughter in case there is an emergent need to transport them to hospital. She acknowledges that her daughter could use 911 emergency service if necessary, but is concerned about the reliability and timeliness of that service.

17I am satisfied that the appellant has no reasonable alternatives to the impounded vehicle. I accept her evidence that she is unable to afford taxis, Ubers, or rental vehicles. I found the appellant to be forthright and convincing. The fact that the appellant is regularly leaving her place of employment in order to bring her granddaughter to the hospital when necessary, at the potential risk of negatively impacting her employment, and the fact that she has decided to suffer increasing symptoms of pain by forgoing treatment herself, support the appellant’s allegation that she is unable to afford the suggested alternatives.

18I also find that the continued impoundment will result in a threat to the health and safety of both the appellant and, in particular, the appellant’s granddaughter. The granddaughter is 12 days old, is suffering from jaundice, and has had to be treated in hospital several times since her birth. In my view the additional time required for either the appellant or emergency personnel to travel from Peterborough to the appellant’s home establishes a threat to the health and safety of the appellant’s granddaughter as a result of the impoundment.

19For the above reasons I find that the appellant has established that the impoundment will result in exceptional hardship as defined in the Act and Regulation.

The appellant has established exceptional hardship according to the Act

20Given my finding with respect to the exceptional hardship ground of appeal, I do not need to determine whether the appellant has established due diligence.

ORDER

21For the reasons set out above, I order the Registrar to release the appellant’s motor vehicle.