Licence Appeal Tribunal File Number: 15796/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:

Kristin Anderson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Kristin Anderson, Appellant

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

April 24, 2024

OVERVIEW

1Kristin Anderson (the “appellant”) appeals the impoundment of her 2017 Nissan on April 8, 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 the condition to have a mandatory ignition interlock device in the vehicle 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 argues that the impoundment of the vehicle will result in exceptional hardship because she is a single mother of a 12-year-old child, and she requires her vehicle to get to and from work, take her child to school, medical appointments and sports activities. She also requires the vehicle to get basic necessities such as groceries and prescription medication. She submits that she has no alternative to the impounded vehicle during the impound period.

10The respondent argues that the appellant does not meet the test for exceptional hardship because she has obtained rides from a co-worker and can take taxis during the impound period. As a result, she has access to alternative modes of transportation during the impound period and does not meet the test for exceptional hardship.

11I agree with the appellant and find that she does not have any alternatives to the impounded vehicle during the impound period for the following reasons.

12The appellant testified that she lives in Carlton Place Ontario, which is a small, rural town which does not have public transit or Uber. Further, she has not looked into renting a vehicle during the impound period because it is unaffordable. She maintains that since the impoundment she has missed two out of nine hours per day of work which has resulted in a struggle to get basic necessities and manage her health. She is employed as a supervisor at Tim Hortons and works from 4:00 a.m. to 1:00 p.m. each day and has been unable to get to work until 7:00 a.m. because there is no public transit available to her, her work is an hour walk away from her home and she cannot leave her son on his own for that period of time. A neighbour has assisted in taking her son to school since the impoundment.

13The appellant testified that because she has missed two hours of work each day by the time her monthly expenses are deducted from her income she has $100 left over for groceries per month, making taxis and a car rental unaffordable. On one occasion she walked to get groceries which is an hour away and had to make an emergency call to the foodbank for grocery delivery, which is a service that is only available once a month. Further, she does not have family and friends nearby to assist her with transportation to get necessities and get to medical appointments. Further, her son has missed the majority of his extra curricular activities since the impoundment.

14The appellant testified that since the impoundment she missed an important medical appointment to ensure a life-threatening disease has not gone into remission and spread. Public transit is not available to her as an alternative to get to this medical appointment. Further, she has been unable to afford prescription medication which she is going to run out of in two-days. She also maintains that both vehicles identified by the respondent as being registered to her were scrapped years ago.

15I find the appellant to be a credible witness and find that she was forthright about the many challenges she has faced since the impoundment. I find she has established that there are no alternatives to the impounded vehicle during the impound period because: a) She does not have access to public transportation, or Uber because she lives in a remote location; b) Taking a taxi would cost her $40 a day to get to and from work. She only has $100 left over each month after expenses are paid and this is an unaffordable option; c) Although she has obtained a ride from a co-worker as a favour, I find this is not a reliable alternative mode of transportation during the impound period; d) I find that having to walk an hour to the grocery store and rely on a foodbank (which she already used as a one time emergency) is not a viable alternative to the impounded vehicle; and e) I believe the two other vehicles identified by the respondent are no longer in her possession. For these reasons, I find the appellant has no alternative mode of transportation during the impound period.

Impoundment Poses a Threat to Health and Safety

16Since the impoundment, I find the appellant lacks alternatives to prevent a risk to her health and safety during the impound period. Although the appellant acknowledged that she has access to emergency services, as noted above she has missed an important medical appointment which could have serious consequences. The appellant was able to reschedule this appointment, but I find that this has not mitigated the health risk to her by not receiving prompt medical care. As a result, I find she has no reliable means of getting to her rescheduled appointment. I find this poses a health and safety risk to her. In addition, her son is missing out on his extracurricular activities which may pose future risks in his development and well-being. Further, as a result of the impoundment she is unable to afford prescription medication which will impact her health when she runs out in two days. I find the appellant lacks alternatives because she does not have family and friends close by to assist her with transportation to medical appointments during the impound period.

17I find the appellant meets the test in s. 10(4) as she has demonstrated that she has explored and inquired into every reasonable option to the impounded vehicle that would be an adequate alternative to prevent these kinds of risks to herself and child who usually rely on the impounded vehicle for transportation.

18I find that the appellant has no alternative and therefore the impoundment poses a threat to her health and safety as set out in s. 10(1)(a) of the Regulation.

Impoundment will likely result in financial loss

19I find the impoundment has and will continue to result in financial loss.

20Section 10(3) of the Regulation sets out that the Tribunal may consider financial or economic loss to any person (s. 10(2)(b)) or loss of education to any person (s. 10(2)(d)) when there is no alternative to the impounded vehicle, the loss is immediate, significant and lasting, and the loss is suffered by a person, other than the driver whose licence is suspended resulted in the impoundment, who is ordinarily transported by the impounded vehicle.

21As highlighted above, the appellant has missed two hours per day from work in a short period of time because of the impoundment. I find that the appellant is at significant risk of not being able to afford basic necessities such as groceries and prescription medication. As highlighted above, the appellant has $100 left over each month for groceries which with inflation is not enough to sustain herself and her son and leaves her with nothing left over to pay for prescription medication. I find this will have financial and health consequences for not only the appellant but will impact her ability to provide for her son. In addition, I find the loss will be immediate, significant and lasting because the appellant will not be able to provide for herself and her child.

22In addition, I find the appellant satisfies the criteria in s. 10(3) in that the loss will be suffered by the appellant and her son, and not the driver of the vehicle who was disregarded the condition of his licence when driving the vehicle.

23For 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 and also result in financial loss. The impoundment will therefore result in exceptional hardship.

CONCLUSION

24I find the appellant has established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

ORDER

25Pursuant to s.50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.