Licence Appeal Tribunal File Number: 15816/MVIA
In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"), from an Impoundment of a Motor Vehicle pursuant to Section 55.1 of the Act.
Between:
Emma L ML Wong
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Emma L ML Wong
For the Respondent:
Leila Pereira, Agent
Heard:
May 7, 2024
OVERVIEW
1The appellant, Emma Wong, appeals the 45-day impoundment of her 2018 Dodge Ram 1500 motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
2The appellant's vehicle was impounded on April 5, 2024, after police found it being operated by her boyfriend while his driver's licence was under a Criminal Code suspension. The appellant states that she was not at home at the time her vehicle was taken without her permission. She only became aware when she received a call from her boyfriend asking for a copy of her insurance documents for the vehicle while he was at roadside with police. The appellant states that she became distraught and upset due to his poor decision to take the vehicle despite her having numerous conversations with him not to use the vehicle.
3The appellant filed her appeal with the Licence Appeal Tribunal (the "Tribunal") on April 12, 2024. In addition to her position that the vehicle was stolen and she exercised due diligence to prevent it from being stolen, the appellant is also relying on the ground of exceptional hardship. She states that she has no alternative to the impounded vehicle, that she has suffered financial loss as a result of the impoundment and also relies heavily on her vehicle for employment purposes. She explained that she uses the vehicle to her clients in her role as a Justice Services Worker with the Canadian Mental Health Association (CMHA).
4Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver's licence of the person who is driving a vehicle is under suspension at the time for certain Criminal Code offences. In this case, the appellant's boyfriend's driver's licence was under suspension for a previous conviction of driving while impaired. The suspension is set to expire on March 5, 2025. As a result of finding this information out at roadside, police impounded the vehicle pursuant to section 55.1(1) of the Act.
ISSUE
5The appellant appeals the impoundment pursuant to s. 50.2(3)(a) of the Act on the grounds that the vehicle was stolen at the time of the impound. She further argues that she exercised due diligence in attempting to prevent her boyfriend from taking her vehicle without her consent.
6The appellant also appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on section 50.2(3)(d) of the Act.
7The onus of proving these grounds of appeal rests with the appellant. To succeed in her appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.
RESULT
8Having considered the parties' evidence and submissions, I find that the appellant has proven on a balance of probabilities that the impoundment will result in exceptional hardship. Since the appellant only needed to succeed on one of the two grounds of appeal, I did not consider whether the vehicle was stolen at the time of the impoundment. The appellant did present brief arguments on this ground during the hearing.
ANALYSIS
9It is undisputed between the parties that the appellant is the owner of the impounded vehicle, that her boyfriend was driving it at the time it was impounded, and that her boyfriend's driver's licence was under a Criminal Code suspension at the time. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.
Has the appellant experienced exceptional hardship as a result of the impoundment?
10I find that the appellant has shown that the impoundment will cause exceptional hardship for the reasons which follow.
11As a first step, s. 10(1) of O. Reg. 631/98 ("Regulation") sets out the factors the Tribunal is to consider when determining whether an impoundment will result in exceptional hardship. The first step under s. 10(1) is that the appellant must demonstrate there is no alternative to the motor vehicle available. Section 10(4) sets out that to show this, an appellant must establish that there are no reasonable alternatives to the impounded vehicle. Section 10(4) of the Regulation provides, as follows:
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
12The appellant offered evidence to demonstrate that she has no alternative to the impounded motor vehicle.
13The appellant lives in Norwood, Ontario and works in Peterborough, Ontario which is approximately 33 km away. She explained that she lives in a fairly remote area with no regular bus service. She has explored other options to replace her impounded vehicle but they have proven to be unreliable and inconsistent. Most importantly, they are out of financial reach for her.
14The appellant explained that she has been able to take a cab to work on occasion but in the long run it is cost prohibitive as it costs her $75 each way to her full-time job. Her current economic situation requires that she work two part time jobs to make ends meet, however, she has not been able to arrange transportation to attend her shifts. She testifies that she has also missed 7.5 days of work from her full-time job with CMHA. This, coupled with the inability to attend her part-time work, has left her in a precarious financial position and barely able to keep up with other expenses. None of her employment positions allows her to work from home.
15The appellant testified she has also had to cancel a personal appointment but was able to reschedule to a time when she was able to get a ride. This was one of the few times she was able to obtain a ride from someone else. She does not have another vehicle available to her.
16Although the respondent's records indicate that there are other vehicles in the appellant's name, she confirmed that none were operable for personal use. She explained that her mother is unable to loan her a vehicle as she needs it for her own personal and medical appointments. The appellant also has no other family members who she can rely upon.
17During her testimony, the appellant explained that missing out on extra shifts at work has been very difficult and has led to the possibility of defaulting on her bills, car payments and mortgage. This has resulted in her experiencing stress and anxiety. The appellant also states that she requires a vehicle to attend her medical appointments, obtain groceries and visit the food bank which she routinely accesses.
18I have also taken into consideration that the appellant is required to use her vehicle for work and cannot simply rely on public transit, even if it were available. Her role at CMHA requires that she assist those with past or current involvement in the criminal justice system to successfully reintegrate. As such, more people other than the appellant herself rely on the vehicle.
19I am satisfied that the appellant has considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
20Having satisfied myself that there is no alternative to the impounded vehicle available to the appellant, I must now consider under s. 10(1)(a) and (b) of the Regulation whether the impoundment will result in a threat to the health or safety of any person who is 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. I may also consider, under s. 10(2) and (3), financial or economic loss, or loss of employment, but only if the owner demonstrates that:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver's licence was under suspension resulted in the impoundment of the motor vehicle, and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 456/10, s. 3.
21I have considered whether the impoundment will result in a threat to the health and safety of anyone ordinarily transported in the appellant's vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used. I find that there is the potential for threat to the health and safety of the appellant's clients if the shifts are not picked up by another worker. The appellant testified that her clients are most comfortable with her and may forego services until she is available.
22I have also considered whether the impoundment will result in financial or economic loss to the appellant, or the loss of employment or employment opportunity to her. I accept the appellant's testimony that her financial situation is precarious and the impoundment may have far reaching effects on her personal situation thereby making it worse. The appellant loses money from any shifts she is unable to take. I find that there is evidence that the loss of her income will have significant and lasting impact on her personal situation. I am satisfied that the financial or economic loss and the loss of the opportunity to take shifts at her job will have immediate, significant, and lasting impacts on the appellant.
23Under the circumstances, I conclude that the appellant has met the burden to demonstrate that there are no reasonable alternatives available to her. I also note that the health and safety of others who rely on the vehicle will be placed in danger due to the impoundment and the service the appellant provides to her community.
24Based on the evidence, and in accordance with s.10 of the Regulation, I find that the appellant has no reasonable alternative to the impounded vehicle and the loss of the vehicle will result in a threat to the health or safety of persons ordinarily transported by the motor vehicle, namely the clients who depend on her service. I also find that the impoundment will result in immediate, significant, and lasting financial or economic loss and loss of employment opportunity to the appellant. As such, I am satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.
Was the vehicle stolen at the time it was impounded?
25Given that I have found that the appellant has proven the ground of exceptional hardship, I need not consider the ground that the vehicle was stolen.
ORDER
26For the reasons set out above, pursuant to the Tribunal's authority under s. 50.2(5) of the Act, I order the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: June 13, 2024