16035

Licence Appeal Tribunal File Number: 16035/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:

Karen E. Sheppard

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Vice-Chair:

Hande Bilhan

APPEARANCES:

For the Appellant:

Karen E. Sheppard, Appellant

For the Respondent:

Sadia Ashraf, Program Advisor

Heard by Teleconference:

July 16, 2024

OVERVIEW

1Karen E. Sheppard (the “appellant”) appeals the impoundment of her 2012 KIA Soul on June 17, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, her ex-son-in-law was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant appeals on the grounds that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

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

RESULT

4Having 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. As a result, I order the release of her vehicle.

ANALYSIS

5The appellant’s vehicle was impounded pursuant to s. 55.1(1)1 of the HTA, because her ex-son in law was driving the borrowed vehicle while his licence was suspended.

6The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

7A 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) as noted above.

8As 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.

9If the Tribunal finds that there is a reasonable alternative to the impounded vehicle, then the appeal will fail and the Tribunal need not consider any other requirements of the test for exceptional hardship.

10If the owner demonstrates that there is no reasonable alternative to the impounded vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the 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. The Tribunal is prohibited from considering whether the impoundment will result in inconvenience to any person. It may consider financial or economic loss, but only if the loss will be immediate, significant and long-lasting and the impact will be on a person ordinarily transported by the vehicle other than the suspended driver.

11The appellant offered evidence to demonstrate that she has no reasonable alternatives to the impounded motor vehicle and that the loss of her vehicle is causing her extreme hardship.

12The appellant lives in East Gwillimbury, Ontario and works in Bradford Landing, Ontario. Both are rural areas with irregular bus service. As she works the night shift from 10:30 pm to 5:30 am, she has no bus and public transit options to get from her home to her workplace at that time as there is no nighttime service. As she works full-time as a personal support worker at a seniors’ care home, she does not have the option of working from home. She has explored other options to get to work and back, such as getting a ride with a colleague, but these have proven to be unreliable and inconsistent as her colleague works part-time and does not work the same hours as her. As such, this option was available to her only twice since the impoundment. She submits that she has had to rely on taking Uber rides and taxis when she has the means for it but has missed work several times when she had to wait for her next paycheque before being able to afford to pay for rides, as she lives on a limited budget from paycheque to paycheque. Hence, she submits that these are not reasonable alternatives to her vehicle.

13The appellant is also the primary caregiver of her 84-year-old mother who was awaiting cardiac surgery when the appellant filed her appeal but at the time of the hearing she had already had the surgery and was recovering at Southlake Regional Health Centre in Newmarket. She has the added stress and cost of caring for her mother at the hospital on a daily basis until she is discharged to her care.

14The appellant testified she has also had to cancel several of her own medical appointments but was able to reschedule them for future dates in the hopes that she can get her vehicle back. She submits that she may have to postpone them again if she is unable to get her vehicle back.

15Given the compound effect of paying for Ubers and taxis to get to work and to her mother’s hospital, and the cost of impoundment fees, the appellant submits that she is not sure she will have the means to get her vehicle back at all.

16Although the respondent’s records indicate that there are other vehicles in the appellant’s name, she confirmed at the hearing that none are in her possession and had not been for a very long time. She currently owns only the impounded 2012 KIA Soul. She does not have another vehicle available to her. She explained that her daughter lives in Quebec and cannot help her.

17The respondent submits that the appellant has alternative transportation in the form of Uber and taxis. She also has access to 911 services. The respondent submits that the appellant has only missed 4-5 days of work, has been able to get groceries and has been able reschedule missed medical appointments. As such, the respondent submits that the appellant has failed to meet the test of exceptional hardship. The respondent requests that the Tribunal confirm the impoundment of the vehicle.

18I have heard credible testimony that the appellant does not have the benefit of friends or family she can rely on for transportation to get to work and then to the hospital to care for her mother. There is also no public transit to her workplace for her night shift job. Going without a vehicle is also not an option given the rural locations where she resides and works. Distances are simply too far for walking. While I understand that paid ride options such as Uber and taxis are available to the general public in the area where the appellant lives, I find the appellant’s testimony convincing and genuine when she states that she is unable to pay for these on her limited budget. I find that taxis and ride programs are in fact unavailable to her as a reasonable alternative. For these reasons, I find that the appellant has established that she has no reasonable alternative to her own vehicle.

19I also find that the impoundment poses a threat to the health or safety of a person ordinarily transported by the vehicle, namely the appellant’s mother. The mother can be released from the hospital any time and not having a vehicle readily available could have implications for the health and well being of the mother. This concern would extend to the end of the impoundment period, and thereafter, if the appellant is unable to reclaim her vehicle due to financial hardship. While 911 service is technically available in the area, not every health condition or appointment warrants the call of an ambulance and in fact doing so can be subject to fees and fines.

20Having established that the appellant has no reasonable alternatives to her vehicle, I also considered the financial and economic loss to the appellant who is not the suspended driver. I find that the impact is immediate, significant and long-lasting given the appellant’s precarious financial circumstances.

21For the above-noted reasons, I find the appellant has proven on a balance of probabilities that the impoundment of the vehicle will result in exceptional hardship under the provisions of s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

22Pursuant to subsection 50.2(5) of the HTA, I order the release of the appellant’s vehicle.