Krystynna Scott v. Registrar of Motor Vehicles, 2024 CanLII 43447

Licence Appeal Tribunal File Number: 15851/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:

Krystynna Scott

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Krystynna Scott Frederick Scott, Appellant Representative

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: May 14, 2024

OVERVIEW

1Krystynna Scott (the “appellant”) appeals the impoundment of her 2014 Dodge Caravan on April 22, 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 the provisions of 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.

3This hearing commenced on May 8, 2024, however the appellant was unable to attend beyond the introductory portion of the hearing that day. The hearing was rescheduled to today by my Adjournment Order dated May 9, 2024.

4For 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 (s. 50.2(3)(d)).

ISSUES

5The issues in dispute are:

i. Will the impoundment result in exceptional hardship?

RESULT

6I find that the impoundment will result in exceptional hardship. The Registrar is ordered to release the vehicle.

ANALYSIS

Circumstances leading to the impoundment

7Under s. 55.1 of the HTA, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

8At the time the appellant’s vehicle was detained, it was being driven by Kari Ann Wood, mother of the appellant. 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

9I find the impoundment will result in exceptional hardship.

10Ontario 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 whether the impoundment will result in a threat to the health or safety of any person 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. Further, I may only 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, if the owner demonstrates not only that no alternative to the impounded vehicle is available, but also that the loss will be immediate, significant and lasting, will be upon a person ordinarily transported by the vehicle, and that the impact of the loss will be upon someone other than the suspended driver. 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.

11The appellant testified that she lives at home with her two sons, ages 5 and 9, and her mother, in Fort Frances, a small northwestern Ontario border town with limited services. The nearest grocery store is a 30-minute walk from their home. The appellant stays home to care for her eldest son and relies solely on Ontario Works and Canada Child Benefit for income; approximately $2,400.00 per month. The impounded vehicle is the only vehicle for the household and the appellant is the only licensed driver.

12The appellant’s eldest son is non-verbal, level three autistic, and requires full-time care. His condition makes it untenable for him to be in unfamiliar surroundings. The appellant testified that transporting him in an unfamiliar vehicle will result in him becoming distressed, panic-stricken, and prone to continually hitting himself in the face. When he is in this state the appellant relies on Lorazepam to ease his anxiety. Without the drug, his “meltdown could last all day/night and be extreme.”

13The younger five-year-old son attends school about a three-minute drive or 15-minute walk from home and uses the Handy Van bus service offered by the Town to get to and from school. The younger son requires additional support at school. The appellant describes him as “fairly non-verbal”, a flight risk, and living with a speech impediment. He is being assessed for autism. The appellant testified that because of his developmental disability, the appellant must be available to pick him up from school at any time during the school day when there is no Handy Van service available.

14The appellant’s mother works full-time, five to six days per week from 8:00 am to 3:00 pm and is the appellant’s only backup caregiver for the boys if she needs to leave the home for any reason.

15The appellant testified that without a vehicle her ability to pick up her youngest son at school through the day is very limited and it would take too long to respond to an urgent need at the school. She would have to see if her mother could cut work and come home to care for her elder son and then take a taxi (which she states is unaffordable) to the school. The appellant testified that there are only two taxi services in Fort Frances and it can take up to one hour for a taxi to arrive.

16The appellant has had help from a friend on one occasion since the impoundment, to get groceries. She stated that she cannot rely on the friend, however, because she works a lot and has four children of her own to care for. The appellant stated that there are no other friends or family members in the Town who have vehicles to help with her transportation needs.

17The appellant has looked into other alternatives to the impounded vehicle. There is no public transit or Uber but, as mentioned, there are two taxi services. The cost for a taxi to and from the nearest grocery store is approximately $40.00. The appellant states that she cannot afford taxi services on her income. She considers a rental car to be unaffordable as well.

18The appellant testified that medical/dental appointments for her family occur once per month on average. She has not missed any medical appointments, and none are scheduled between now and the date the vehicle is scheduled to be released. The appellant testified that her eldest son routinely requires three prescription drugs and the supply of at least one of them is about to run out. Without transportation she does not know how she will get the prescription filled but stated that delivery of pharmaceuticals might be available to her.

19The appellant submits that she has no reasonable alternative to the impounded vehicle and that the impoundment will result in a threat to the health or safety of her sons who ordinarily rely on the motor vehicle for transportation. The appellant seeks the release of the vehicle on the ground of exceptional hardship.

20The respondent submits that the appellant has alternatives to the impounded vehicles such as tax services and has used a friend to help get groceries. The youngest son has not missed any school and no one in the household has missed any medical appointments.

21The respondent submits the appellant does not meet the criteria for exceptional hardship and seeks confirmation of the impoundment.

22I find the appellant meets her burden in demonstrating exceptional hardship.

23I find the appellant’s evidence to be forthright and persuasive. She is convincing in her argument that she has no reasonable alternatives to the impounded vehicle. The friend’s car cannot be relied on as an alternative. I find the taxi service is the only other alternative, but it is not a reasonable alternative because she cannot rely on it in an urgent situation and her eldest son would become panicked and anxious to the point of causing self-harm if she attempted to transport him in a taxi.

24She has no reasonable alternatives to the impounded car because of the lack of public or for-hire services in her town and a taxi is a risky and improbable option considering her sons’ health conditions. Her sons rely on her for care and her vehicle for transportation.

25I find the appellant has looked into every reasonable alternative, as anticipated in s. 10(4) of the Regulation, that could eliminate or adequately mitigate any threat to the health or safety of the persons ordinarily transported by the motor vehicle, namely her sons.

26I find that a rental car is not a reasonable option given the appellant’s income and the health and safety risk to her son of acclimating him to the rental car given his response to unfamiliar surroundings. Similar problems are posed by taxis and by relying on friends.

27I find the appellant has no reasonable alternative to the impounded vehicle. As referenced above, in cases where there is no alternative, s. 10(1)(a) of the Regulation compels 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.

28I find the impoundment will result in a threat to the health and safety of the two sons, for the reasons I have previously described. The appellant’s health and safety are also at risk. The appellant already copes with the rigorous demands of caregiving for her sons, while also on a low income. In these circumstances, I find the disruption and additional stress caused by the impoundment represents an additional health and safety risk to her.

29Although I refer to the consequences of the impoundment on the youngest son’s schooling and the potential for economic strain considering the appellant’s low income, for greater clarity, my finding rests on the risks to the health and safety test in s. 10(1), specifically to the appellant and her sons, and not on any analysis of financial loss or loss of education.

30It appears that the appellant’s mother provides important, if not critical caregiving support in the household. For the health and safety of her daughter and grandsons she should not risk losing the household’s only vehicle to another impoundment by driving it without a licence. Under s. 55.1(3) of the Act, a second occurrence would subject the vehicle to a 90-day impoundment, and under s. 50.2(4) of the Act, the exceptional hardship ground could not be used in an appeal for a second impoundment of this vehicle, or any vehicle owned by the appellant.

CONCLUSION

31I find the appellant meets her burden in proving, on a balance of probabilities, that the impoundment will result exceptional hardship pursuant to s. 50.2(3)(d) of the Act and s. 10 of the Regulation.

ORDER

32Pursuant to subsection 50.2(5) of the Act, I order the Registrar to release the vehicle.

Bruce Stanton

Adjudicator