Licence Appeal Tribunal File Number: 16083/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:

Holly Bullock

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Appellant: Holly Bullock

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: July 26, 2024

OVERVIEW

1Holly Bullock (the “appellant”) appeals the impoundment of a 2011 Chevolet Equinox on July 11, 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 July 26, 2024, with the appellant and respondent in attendance.

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.

ISSUE

5The issue in dispute is:

i. Will the impoundment pursuant result in exceptional hardship?

RESULT

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

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 or failing to complete a remedial program, or is subject to an ignition interlock condition while driving a non-equipped vehicle, the officer must detain and impound the vehicle.

8At the time the appellant’s vehicle was detained, it was being driven by Michael Douglas Flemming, a friend of the appellant.

9The respondent submitted the Notice to Registrar from Durham Regional Police Service dated July 11, 2024 indicating that a Chevrolet Equinox bearing Ontario licence plate number CSYE034 owned by the appellant, was impounded as a result of the driver’s licence being suspended resulting from a Criminal Code offence with an impound hold for 45 days.

10The respondent presented unrefuted evidence that the driver’s licence of Michael Douglas Flemming was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained.

EXCEPTIONAL HARDSHIP

11I find the impoundment will cause exceptional hardship.

12Ontario 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.

13The appellant testified that she lives in a rural area near Beaverton in a basement apartment with a temporary visitor. She has limited means and is unable to work due to the impoundment of her vehicle. The appellant is employed full-time and her place of employment is a 35-minute drive away from her apartment; she states she will lose her position if she does not return to work soon.

14The appellant testified during the impoundment period her supervisor drove her to work once to complete some pressing tasks requiring her to work a fourteen-hour day. It was made clear to her by her supervisor this accommodation would not be repeated due to the distances involved, and she must return to work shortly or she would be replaced. She testified her employer is awaiting the outcome of this hearing.

15When asked about alternative transportation, the appellant testified there is no public transit, taxi or Uber available. The elderly landlords who live on the main floor of her apartment are not able to assist her with going to work due to the distance involved. Her family is also unable to assist her as they live a 30-minute drive away from her work in the opposite direction of her apartment. No co-worker is able to assist her due to the distance involved, and one part-time co-worker who is dependent on her for transportation to work is also in danger of losing her position. I found the appellant’s testimony to be consistent and credible in respect to her employment being at risk and lack of alternative transportation.

16The respondent produced evidence of two other vehicles plated in the appellant’s name. The appellant testified the two vehicles have been scrapped and was surprised that active plates were indicated on the record; the vehicles indicated in the record were 13 and 18 years old respectively. I found the appellant’s testimony to be credible as to the dispensation of these vehicles and her dependency on the impounded vehicle.

17The appellant testified the impoundment has compromised her health and safety as she had missed a physician’s appointment and was unable to obtain a prescription as the nearest pharmacy was a 30-minute drive away; no delivery option was available. The appellant testified she was suffering from an ear infection at the time of the impoundment and it remains untreated to date.

CONCLUSION

18I 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.

19I am satisfied that the appellant has established that there is no reasonable alternative to the impounded vehicle. Public transit, taxi or uber services are not available, nor is public transit. She has no friends or family that can assist with her transportation. Also, while rental vehicles may be available, she is unable to afford the cost of that option.

20I am also satisfied that the impoundment of the vehicle will cause an immediate, significant and lasting economic impact on the appellant, as she has been advised that her employment is in jeopardy if she misses any more shifts at her work. Also, I find that there is a threat to the health and safety of the appellant due to the impoundment. Without transportation, the appellant is unable to have an ear infection to be treated.

21I note that the burden of this test is difficult to meet, and the appellant bear this in mind before permitting any party to operate any vehicle owned and plated by her. It is advisable to note that, under s. 55.1(3) of the Act, a second similar impoundment 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.

ORDER

22Pursuant to section 50.2 of the Act, I order the Registrar release the vehicle forthwith.

23This Order was pronounced orally from the Chair on the hearing date and is effective from the date it was given.

Robert Maich

Vice-Chair