Licence Appeal Tribunal File Number: 16135/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:

Jayden Hughes

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Dianna Hughes, Representative of the Appellant

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

August 22, 2024

OVERVIEW

1Jayden Hughes (the “appellant” and the “driver”) appeals the impoundment of his Tao Motor e-bike on July 15, 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 motor vehicle which has been impounded in accordance with section 55.1 may, under the provisions of section 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 he satisfies at least one of the five grounds set out in subsection 50.2(3) of the Act. The appellant appeals on the ground that the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

PRELIMINARY MATTERS

Non-attendance of the appellant

4The appellant did not appear at the hearing. He was represented by his mother, Dianna Hughes, who had filed a Declaration of Representative (“DoR”) with the Tribunal.

5Rule 3.7 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) stipulates that a party as defined under Rule 2.16 and/or their representative must attend their in-person or electronic hearing before the Tribunal. The appellant’s representative has filed a DoR with the Tribunal and the respondent has not raised any objection to proceeding in the absence of the appellant, therefore the hearing may proceed in the appellant’s absence pursuant to Rule 3.7.

Is the impoundment outside of the Tribunal’s jurisdiction?

6The respondent submits that the appeal falls outside the jurisdiction of the Tribunal. It submits that the e-bike that is the subject of the impoundment is not a motor vehicle as defined in the Act.

7As noted above, section 50.2 of the Act, which sets out the appeal provisions of a long-term vehicle impoundment, stipulates that the owner of a “motor vehicle” that is impounded under section 55.1 may appeal the impoundment to the Tribunal.

8The respondent directs me to the definition of motor vehicle in section 1(1) of the Act. It includes an automobile, motorcycle and other vehicles propelled by power other than a driver’s own muscular power, and specifically does not include a “power-assisted bicycle”. A “power-assisted bicycle” is defined as requiring “pedals that are operable to propel the bicycle.”

9The respondent submits that the appellant’s vehicle is a power-assisted bicycle and is therefore not a motor vehicle for the purposes of section 50.2. The Tribunal, it submits, only has jurisdiction to hear appeals of motor vehicle impoundments, not appeals regarding power-assisted bicycles.

10The respondent submits that because the vehicle is an e-bike, it is not registered as a motor vehicle. It could have an e-bike licence plate, but the Ontario Ministry of Transportation (“MTO”) would consider it an unregistered vehicle.

11The respondent submits that the e-bike is unregistered and that motor vehicles, for the purposes of section 50.2, are registered by the MTO. The respondent infers that because the vehicle is not registered it does not meet the definition of motor vehicle and therefore its impoundment is outside the jurisdiction of the Tribunal. The respondent did not dispute that the vehicle was owned by the appellant, despite not being registered.

12The appellant’s representative attended the roadside scene when the appellant’s vehicle was being detained for impoundment. The appellant’s representative submits that the police officer who detained the e-bike described the vehicle as a motorcycle because it did not have pedals installed. It could not be propelled by the driver using his own muscles. The arms of the pedals were installed, but not the pedal pads one would use to power the e-bike using pedal power.

13Because the police considered it a motorcycle, the appellant was deemed to be operating a motor vehicle. Accordingly, the appellant’s representative submits he was charged with driving infractions, including having the wrong type of licence plate, no insurance, and no valid driver’s licence.

14I have considered the parties’ submissions and find the Tribunal has jurisdiction in this matter.

15I take note that the police officer witnessed the vehicle and determined it to be a motor vehicle under the Act. The Notice to Registrar (“NTR”) describes the vehicle as “Tao Motor, E-bike turned motorcycle”. The police officer’s description of the vehicle is consistent with the appellant’s submissions, in particular, that there were no pedals installed on the e-bike.

16I find that because the vehicle had no practical means to operate its pedal drive mechanism, the vehicle does not meet the definition of a power-assisted bicycle. Section 1(1) of the Act defines a power-assisted bicycle as a bicycle that is power-assisted, is fitted at all times with pedals that are operable to propel the bicycle, and capable of being propelled on level ground by muscular power.

17The respondent’s claim that the vehicle is a power-assisted bicycle, and therefore does not fall within the definition of motor vehicle, defies the evidence before me. The police officer’s and the appellant’s description of the vehicle’s capability are uncontested by the respondent. The vehicle was effectively a “motorcycle” as defined in the Act.

18I also find that a vehicle does not need to be registered as a motor vehicle with the MTO to meet the definition of motor vehicle for the purposes of section 50.2 (which gives the Tribunal the authority to hear impoundment appeals).

19In Davis v. Registrar of Motor Vehicles, 2021 CanLII 114048 (ON LAT) (“Davis”) the Tribunal found, at paragraph 21, that the right to appeal an impoundment under section 50.2 is not limited to the persons whose names are listed on the vehicle permit but includes the actual owner of the motor vehicle. Put another way, the right to appeal under section 50.2 is not limited to the persons whose names appear on a permit or certificate of registration. The appeal can be initiated by the actual owner of a motor vehicle, whether registered or unregistered. In Davis, therefore, the owner of a golf cart, which was incapable of registration under the Act, was permitted to appeal its impoundment. While Davis is not binding on me, I find its reasoning persuasive and follow it in this case.

20I find that a vehicle does not need to be registered with the MTO for the owner to appeal its impoundment to the Tribunal.

21I find that the appeal of the impoundment of the appellant’s vehicle is within the jurisdiction the Tribunal.

ISSUES

22The issue in dispute is:

1. Will the impoundment result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act and section 10 of O. Reg. 631/98 under the Act?

RESULT

23I find the impoundment is resulting in exceptional hardship. The Registrar is ordered to release the vehicle.

ANALYSIS

Circumstances leading to the impoundment

24Under section 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

25The appellant was the driver of the vehicle when it was detained for impoundment. The respondent presented evidence that, at the time the vehicle was detained, the driver’s licence was under suspension for a prescribed Criminal Code driving offence pursuant to sections 41 and 43 of the Act. Therefore, the vehicle was impounded for 45 days.

Exceptional Hardship

26I find that the appellant has met his burden in proving that the impoundment will result in exceptional hardship.

27Ontario 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, section 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.

28The appellant’s representative testified on his behalf at the hearing, without objection from the respondent.

29The appellant’s representative testified that the appellant was diagnosed with mental illness from the age of 12 and struggles with social communication and a learning disability. He struggled his way through secondary school and by grade 11 developed a substance use addiction. His addiction and mental illness contributed to his having a motor vehicle accident in January 2023 in which the vehicle was a total loss, and he lost his driver’s licence due to impaired driving. He is currently 23 years of age.

30She testified that her son deliberately did not renew his driver’s licence after the accident, choosing rather to continue therapy and addictions counselling until he was healthy enough to start driving again. He was convicted of driving with more than 80 mgs of alcohol in his blood and is currently on probation on terms that require regular contact with his probation officer.

31The appellant’s parents organized and paid for an apartment for him to gradually become more independent but a fire in his apartment building (unrelated to his apartment) in December 2023 forced him back to residing with his parents in Stittsville. All his belongings were lost in the fire. The appellant’s mother described the fire as a significant set back to her son’s mental well-being, from which he is still recovering. They organized a different apartment for him starting in March of 2024, where he currently resides. The appellant’s only income is ODSP. His parents support him financially by paying the rent for the apartment.

32The appellant’s representative testified that the appellant sought her assistance at the roadside scene of the impoundment on July 15, 2024. The police welcomed her assistance in settling him down.

33The appellant attends the Ottawa Addictions Treatment Centre for counselling and sobriety tests daily, 7 days per week. He attends regular appointments with his probation officer, a bi-weekly anger-management session with a social worker, and had, up to the impoundment, attended community service hours tasks as part of his sentence.

34The appellant’s representative testified that she is familiar with her son’s addiction and mental health issues and she supports him regarding decisions about his mental health treatment and interactions with the criminal justice system.

35The appellant’s representative testified that since the impoundment he has used transit bus services to get to his daily appointments at the addictions treatment centre but due to limited income, has resorted to attempting to ride on the back of buses, or missing his appointments altogether. He has missed 5 to 6 appointments since the impoundment. He has been unable to attend community service appointments organized by his probation officer. His lack of transportation and access to daily appointments has spiralled into not wanting to leave the apartment and further dependence on his parents.

36The appellant’s representative testified that she is a nurse and works full time. She is unable to support her son’s daily transportation needs. His clinic appointments are usually daytime hours, 9 to 5, and they often conflict with her hours. She testified that there are no other family members or friends within a reasonable distance to support his transportation needs. Her husband is not the appellant’s biological father. The stepfather also works full-time, in Gatineau up to 45 minutes drive away, and he does not support the appellant’s needs.

37The appellant’s representative testified that ride share services or taxis are not affordable on the appellant’s low, ODSP income.

38The appellant’s representative testified that the appellant is able to walk 10 to 15 minutes from his apartment to get groceries and household needs. He also depends on home delivery from Amazon for supplies and grocery retail delivery services as needed.

39The respondent submits that the appellant fails to meet the threshold for exceptional hardship. He has alternatives to the impounded vehicle, has been able to get transportation help from family members and access public transit to meet his medical appointments, and is able to walk and get delivery services for his household needs. It submits that the appellant’s health and safety has not been threatened by the impoundment and requests that the impoundment be confirmed.

40I find the appellant has no alternatives to the impounded vehicle to meet his daily medical appointments.

41I give weight to the appellant’s representative’s testimony because, as his mother and as a nurse, she seems to be routinely involved in decisions with respect to his mental health and meeting the conditions of his probation. The appellant appears to rely on her to help navigate the circumstances he finds himself in, just as he did in seeking her help the day of the impoundment. I find the appellant’s representative was forthright in her testimony both in describing the appellant’s health and treatment regime and his commitments to the conditions of his probation. I recognize that the respondent did not object to the appellant’s representative testifying on his behalf, and the respondent had the opportunity to cross-examine the appellant’s representative. The cross-examination revealed that the appellant’s representative’s recollection of dates, for example the date of the appellant’s conviction for the Criminal Code offence, was not consistent with the respondent’s documentary evidence; however, I found the appellant’s representative’s responses under cross-examination to be otherwise both reliable and credible.

42I find it is commendable that this young man is endeavoring to access the treatment he needs to improve his mental health and become more independent/self-sufficient. He admittedly has alternative modes of transportation for some of his needs, such as walking and using delivery services for household needs, but he has no alternative mode of transportation for his daily addiction treatment and therapy. Attempting to ride on the back of transit bus because he cannot afford the fare shows determination to attend his appointments but is not a reasonable option as it puts him at great risk of fines or penalties from OC Transpo, not to mention physical injuries.

43I find the appellant has inquired and looked into other alternatives to the impounded vehicle, such as other family members, ride share, and taxis as is required by section 10(4) of the regulation. He has inquired into ways to do without his impounded vehicle. However, the necessity of attending daily mental health and sobriety appointments, coupled with his low income, effectively leave him without reasonable alternatives to the impounded vehicle. Pay-as-you-go ride services are understandably not reasonable due to the appellant’s limited income.

44The appellant’s representative testified that virtual medial appointments are not an option for the appellant because he must provide a urine sample, in-person, at each daily appointment at the addictions treatment centre.

45Under subsection 10(1)(a) of the Regulation, when no alternative is available, the Tribunal may consider threats to the health and safety of any person normally transported by the motor vehicle. In this case, the absence of reasonable alternatives to meet his daily health appointments directly and negatively threaten the health and safety of the appellant.

46I take notice that the impounded e-bike will not serve as a suitable alternative for the appellant to attend his daily medical appointments until the pedals are installed. Once they are installed on the pedal mechanism, the e-bike would appear to meet the definition of a power-assisted bicycle, thereby permitting him to operate it on roadways without a driver’s licence. The appellant’s representative testified that the e-bike had been returned to the vendor to have the pedals installed.

47For the reasons discussed above, I find the impoundment will result in exceptional hardship.

CONCLUSION

48I find that the appellant meets his burden in demonstrating that the impoundment will result in exceptional hardship.

ORDER

49Pursuant to subsection 50.2(5) of the Act, I order the Registrar to release the impounded vehicle.

Bruce Stanton

Adjudicator