Annette Thompson v. Registrar of Motor Vehicles, 2024 CanLII 35843

Licence Appeal Tribunal File Number: 15814/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:

Annette Thompson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Colin Osterberg

APPEARANCES:

For the Appellant: Annette Thompson, Appellant

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: April 25, 2024

OVERVIEW

1Annette Thompson (the "appellant") appeals the impoundment of her 2022 Chrysler van on March 31, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"). At the time of the impoundment, a friend was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

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"), allowing the appeal and that the Registrar release the vehicle.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s.50.2(3)(d). namely that the impoundment will result in exceptional hardship.

ISSUES

4I have been asked to decide:

1. Will the impoundment of the appellant's vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I direct the Registrar to release the vehicle.

ANALYSIS

I find the impoundment of the vehicle will result in exceptional hardship.

6Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the Act. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

7Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option such as using another vehicle and making arrangements to manage without any motor vehicle during the impound period.

8Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant does not have any alternatives to the impounded vehicle.

9The appellant led evidence that she has been disabled for many years and that her mobility is restricted. She suffers from significant arthritic conditions, injuries, and resulting chronic pain and participates in various therapies. She uses at various times and for various purposes, a cane, two canes, a wheeled walker, a wheelchair and an electric scooter.

10The impounded vehicle is a van which has been modified to accommodate the appellant's disabilities and which is equipped to transport her various mobility aids. In addition, the appellant says that the use of the van mitigates her pain complaints relative to using other vehicles.

11In addition, the appellant uses the van to transport her "mate" who lives with her and her mother to various appointments. Her mate has MS and her mother is elderly. Both have mobility restrictions and chronic pain conditions. The appellant says that the use of the van mitigates their pain complaints as well.

12The appellant does have occasional access to an SUV which is her daughter's vehicle and she has borrowed a friend's vehicle. The appellant says, and I accept, that using vehicles other than the van are painful for herself and for her mate and mother. The appellant described the significance of the pain she experiences due to the difficulties she has in getting in and out of other vehicles and the concerns she has with respect to the safety of herself, her mate and her mother getting in and out of the vehicles that are not appropriate to accommodate her disability.

13I am satisfied that the appellant does not have a reasonable alternative to the impounded vehicle. Although the appellant has attended her various medical and other appointment and has transported her mate and her mother to their appointments, that has resulted in significant pain to the persons normally transported. Those vehicles are also not able to transport all of the appellant's mobility aids. In my view those are not reasonable alternatives to the impounded vehicle.

The impoundment will result in a threat to health and safety

14Section 10(1) of the Regulation provides that if there is no alternative to the impounded vehicle, the Tribunal will determine whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle.

15I find that the impoundment will result in a threat to the health or safety of persons ordinarily transported by the motor vehicle.

16The evidence is that the appellant has experienced, and will experience, significantly increased pain complaints as a result of the loss of the impounded vehicle. She is unable to participate in her daily activities as she did before and her emotional health is deteriorating due to the increased pain and anxiety which has resulted from the impoundment. I accept that evidence.

17The appellant is also concerned that using other vehicles than the impounded vehicle may result in further injury. The impounded vehicle is equipped to compensate for the appellant's disability and to accommodate the various mobility aids she requires. The other vehicles she has access to are not.

18I accept that the impoundment poses a threat to the appellant's health and safety as set out in s. 10(1)(a) of the Regulation.

19For the reasons highlighted above, I have determined that the appellant has no alternative to the impound vehicle during the period of impoundment. Further, I find the impoundment will cause risks to the health and safety of the appellant. The impoundment will therefore result in exceptional hardship.

CONCLUSION

20I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

ORDER

21Pursuant to s.50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.