Zana Mary W Boyle v. Registrar of Motor Vehicles, 2024 CanLII 49038

Licence Appeal Tribunal File Number: 15891/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:

Zana Mary W Boyle

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Zana Boyle, appellant Andrew Gouin, Paralegal

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: May 24, 2024

OVERVIEW

1Zana Boyle (the “appellant”) appeals the impoundment of her 2006 Audi A4 on April 25, 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.

3For 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 impoundment will result in exceptional hardship pursuant to s. 50.2(3)(d).

ISSUES

4The issue in dispute is:

i. Will the impoundment result in exceptional hardship?

RESULT

5I find the impoundment will not result in exceptional hardship. The impoundment is confirmed.

ANALYSIS

Exceptional Hardship

6I find the impoundment will not result in exceptional hardship.

7Ontario 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.

i. 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.

ii. 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.

iii. 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.

8The appellant testified that she and her 2-year-old daughter live with Kris, the driver, near Norland, Ontario, approximately 40 minutes drive north of Lindsay along Highway 35. The impounded vehicle is the household’s only vehicle.

9The appellant works full-time doing contract cleaning at various locations in her area and depends on the impounded vehicle for transportation to and from the locations and carrying equipment and supplies for her work. She usually cleans between 3 and 5 locations per day, five days per week. The appellant testified that she usually works with a co-worker at the location and other times she is required to work alone.

10The appellant testified that in the last four weeks since the impoundment she has worked only seven days. On those days she was able to get transportation assistance from the business owner, friends, and the use of her grandmother’s vehicle. She testified that her employer is not very accommodating of the impoundment circumstances and has complained that the appellant’s continued lack of availability may result in her losing her job. She submits that her employer is losing income due to her lack of availability.

11The appellant testified that her grandmother lives in Lindsay and depends on her for care and assistance in attending health appointments. The grandmother of 81 years was recently released from hospital after surgery. The appellant describes her grandmother as an able but reluctant driver. The grandmother welcomes the appellant’s assistance with driving to and from medical appointments and in getting supplies, and since the impoundment, the appellant has used those occasions to get supplies for her own household.

12The grandmother has allowed the appellant to use her vehicle on occasion, but not on an ongoing basis. The appellant inquired about using the grandmother’s vehicle regularly during the impoundment, but the grandmother refused because it would put too many kilometres on the vehicle.

13The driver works full time in Minden, approximately 20 minutes drive from home, and since the impoundment has been able to rely on friends and co-workers to get to and from work. He has not missed any days of work.

14The appellant testified that her daughter is currently in good health but at 2-years-old she is vulnerable to needing urgent healthcare. The appellant submits that not having a vehicle puts her daughter’s health and safety her at risk. There is 911 ambulance service in her area but the appellant testified that the response time could be up to 40 minutes (from Lindsay) plus the time to get to Lindsay hospital, up to another 40 minutes.

15The appellant testified that her own health is good but without a vehicle she has been unable to schedule a blood test that is required for a pending appointment with her family physician. She does not know how she will attend the blood test or the appointment with her physician.

16The appellant testified that there is no taxi service nearby. The closest taxi she is aware of is in Lindsay, which due to the distance involved would be unaffordable. The appellant considers that the bus service in her area, which runs only three trips per week, is impractical for her needs and at a fare of $46.00 one-way, is unaffordable. The appellant testified that she and the driver earn about $2,500 to $3,000 per month between them and after rent of $2,400 per month they have little left for household needs.

17The appellant testified that she looked into a rental car, but it was too expensive for their family and even if it was affordable, she does not have a credit card, which is mandatory, and her G2 licence is not a sufficient credential to rent a vehicle.

18The appellant testified that the closest retail services are 1.5 hours walk away. There is a convenience store in Norland, a 30-minute walk, but it is not a suitable alternative for groceries and supplies.

19The appellant testified that she has been able to get transportation help from friends on occasion, but she cannot rely on them because they work full-time.

20The appellant testified that when she is at work, her daughter attends a daycare centre that is a 20-minute drive from home.

21The appellant testified that the impoundment fee of approximately $3,200.00 is unaffordable and will be a financial hardship.

22The appellant seeks the release of the vehicle on basis that the impoundment will result in exceptional hardship, in particular that not having a vehicle at her disposal in such a rural location represents a risk to the appellant’s and her daughter’s health and safety, and without any reliable alternative to maintain her employment obligations, she risks losing her job.

23The respondent submits that the appellant has alternatives to the impounded vehicle such as her grandmother’s vehicle, and assistance from her friends and co-workers. The respondent submits that the appellant’s employer has made accommodations for the circumstances of the impoundment and notes that the appellant has not looked into taxi or Uber in her area. The respondent submits that the appellant has not met her onus to prove exceptional hardship and seeks confirmation of the impoundment.

24I find, on a balance of probabilities, that the impoundment will not result in exceptional hardship.

25I agree with the appellant that her location puts her at a considerable disadvantage for alternatives to the impounded vehicle, but she is not without alternatives.

26The appellant has considered and has used other alternatives such as her grandmother’s vehicle and getting help from friends to get supplies for the household.

27Since the impoundment, the driver has been able to depend on friends to get him to and from work in Minden, without interruption. The appellant testified that those friends live in or near Norland. Since they are already assisting the appellant’s household with transportation for the driver, they could conceivably be available for other needs during the impoundment including any urgent health circumstances.

28I agree that there is no local taxi service. For taxi service the appellant would have to look to either Minden (20-minute drive) or Lindsay (40-minute drive). I take notice of the fact that a Google search returns one taxi service in Minden Hills, a rural township of approximately 6,900 people, and several in Lindsay. The fare one-way from Norland to Lindsay is approximately $120.00. I agree with the appellant when she submits that taxi service is an unaffordable and impractical alternative for her, and as discussed above, renting a car is not an option. At three times per week, the bus service is very limited and not a reasonable alternative.

29I find the appellant is convincing in her arguments that she needs a vehicle for work however I am not persuaded that she has fully considered options and arrangements that would allow her to continue working.

30Section 10(4) of the Regulation requires that a vehicle owner demonstrate that every reasonable option is explored and inquired into, including using another vehicle or arranging to be without a vehicle. The appellant claims that borrowing her grandmother’s car or relying on co-workers for work purposes is not possible, but the evidence before me suggests that both these possibilities need further inquiry.

31The appellant testified that most of the cleaning services are done by teams of two. The possibility of having a co-worker pick her up while on route to a service location and restricting her work assignments to those suited to a 2-person team, should be further explored.

32On the appellant’s workdays, either she or the driver, who has arrangements to get to and from work, could conceivably include stops at the daughter’s daycare. Admittedly, such an approach would be logistically more difficult, but presumably it would also be preferrable to not working at all. Inconvenience cannot be considered in determining if the exceptional hardship ground is met.

33The appellant testified that she was able to use her grandmother’s car but only in a limited way citing her grandmother’s concern for putting too many kilometres on it. The appellant also described her grandmother’s reluctance to drive on her own. It seems reasonable, under these circumstances, that the appellant explore the possibility of borrowing the grandmother’s car on the basis she be compensated for the extra kilometres i.e. a private rental arrangement.

34A combination of renting her grandmother’s car and scheduling work assignments with co-workers could serve to help the appellant maintain her employment obligations. I recognize these possible alternatives are not fully within the appellant’s control but the exceptional hardship test in the Regulation requires that options such as these be looked into.

35I find the appellant has not demonstrated that there is no alternative to the impounded vehicle. Accordingly, I am not able to consider other factors such as the health and safety of persons ordinarily transported by the vehicle or the financial or economic loss caused by the impoundment. Secondly, the appellant has not demonstrated that every reasonable option has been explored and inquired into pursuant to s. 10(4) of the Regulation.

CONCLUSION

36I find the appellant has not met her burden to demonstrate that the impoundment will result in exceptional hardship.

ORDER

37Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.

Bruce Stanton

Adjudicator