Licence Appeal Tribunal File Number: 15462/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 under section 55.1 of the Act for driving while suspended.

Between:

Douglas Collett

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Douglas Collett, Self-represented with the assistance of Valerie Krumme

For the Respondent: Sadia Ashraf, Representative

Heard by Teleconference: December 13, 2023

OVERVIEW

1Douglas Collett, the appellant, appeals from the impoundment of his 2009 Chevrolet, the vehicle, on November 28, 2023 for 45 days.

2The appellant was self-represented at the hearing but was assisted by his common-law spouse Valerie Krumme as he said he is not computer literate and had recently had surgery.

3The appellant appeals on the ground that the impoundment will result in exceptional hardship because he needs his vehicle to attend occupational therapy following his recent surgery, to travel to another municipality once a week to assist his 94 year old father. Ms. Krumme needs the vehicle to travel to another municipality to provide care for her father who has dementia, to pick up Ms. Krumme’s three grandchildren in another municipality so that they can spend each weekend with the appellant and Ms. Krumme. The appellant submits he cannot afford the impound fees as he is on disability and Ms. Krumme is retired.

ISSUES

4The issue in dispute is:

i. Issue 1: Whether the impoundment will result in exceptional hardship.

result

5I find that the impoundment will not result in exceptional hardship.

ANALYSIS

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Issue 1: Will the impoundment result in exceptional hardship?

8I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…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.

10If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) 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.

11I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

12Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

13Ms. Krumme testified that the appellant recently had surgery and must attend therapy three times a week. However, Ms. Krumme also testified that the appellant has been able to attend all his medical appointments by taking cabs although she said they find this expensive because the appellant is on disability and she is retired.

14Ms. Krumme testified that she has been able to obtain groceries and other necessary items for herself and the appellant with the help of a friend.

15Ms. Krumme testified that the appellant usually goes to another municipality once a week to assist his 94 year old father and is unable to do this without the vehicle. Neither Ms. Krumme or the appellant said that the appellant’s father has been unable to obtain groceries during the impoundment period.

16Ms. Krumme testified that she needs the vehicle to travel to another municipality to provide care for her elderly father. During the impoundment period, Ms. Krumme said that her father has arranged for a personal service worker to come to his home three times a day to assist him, another relative has been taking groceries to him, and Ms. Krumme has been able to ensure that her father’s caseworker provides help to her father with laundry and other services. However, Ms. Krumme is concerned because she understands that the additional services she has arranged for her father are only available for six weeks.

17Although Ms. Krumme testified that she needs the appellant’s vehicle to pick up her three grandchildren who live in another municipality so that they can spend each weekend with the appellant and Ms. Krumme, she admitted that this is an agreement she has made with the grandchildren’s mother, not a court-ordered custody arrangement.

18Ms. Krumme testified that she needs the vehicle to attend her medical appointments in another municipality and has had to cancel two appointments. However, Ms. Krumme admitted that these medical appointments have been rescheduled to January, 2024 after the impoundment period has ended.

19Ms. Krumme also testified that if the appellant has to pay the impoundment fees to obtain release of the vehicle, this will be a financial hardship for them because the appellant is on disability and Ms. Krumme is retired.

20The appellant in his testimony said he agreed with what Ms. Krumme had said in her testimony. The appellant testified that he has been able to attend all his medical appointments during the impoundment period except for one appointment the day after the impoundment, which appointment was rescheduled.

21The appellant testified that he owns two vehicles in addition to the impounded vehicle. One additional vehicle is a 2004 Ford truck which both the appellant and Ms. Krumme said cannot be driven in its current condition because it requires repairs which they cannot afford. The other additional vehicle is a 30 foot motor home which has been “put away for the winter” and is not available to drive during the impoundment period.

22Although Ashley Smillie testified at the hearing about how she came to be driving the vehicle at the time of the impoundment, she had no testimony relevant to the exceptional hardship ground of appeal. Ms. Smillie denied that her driver’s licence was suspended at the time of the impoundment which is not credible in view of the documents filed by the Registrar at the hearing. Ms. Smillie also said that she could not afford to help the appellant with the impoundment fees.

23It is clear from Ms. Krumme’s and the appellant’s testimony that arranging alternate transportation for the appellant’s medical appointments during the impoundment period is inconvenient for them.

24However, inconvenience is not a factor which the Tribunal can take into consideration.

25I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

26I find that the appellant has alternatives to the impounded vehicle available to him during the impoundment period including publicly available transportation, such as taxis, albeit at a cost, and the help of friends to obtain groceries and other items. The appellant also potentially has the use of the truck he owns, subject to putting it in safe mechanical condition prior to use if necessary.

27The appellant has been able to attend his medical appointments. Ms. Krumme has been able to reschedule her medical appointments to after the impoundment period expires in January 2024, to ensure that others care for her elderly father during the impoundment period, and Ms. Krumme’s temporary inability to provide transportation to her grandchildren for family visits does not constitute exceptional hardship.

Conclusion

28As a result, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

29Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.