Mary-Ann Kennedy v. Registrar of Motor Vehicles, 2024 CanLII 88896

Licence Appeal Tribunal File Number: 16079/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:

Mary-Ann Kennedy

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Mary-Ann Kennedy

For the Respondent:

Sadia Ashraf, Agent

Heard:

July 25, 2024

OVERVIEW

1The appellant, Mary-Ann Kennedy, appeals the 45-day impoundment of her 2018 Toyota Corolla under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

2The appellant's vehicle was impounded after police found the appellant's boyfriend, T.J., operating the vehicle while it did not have an ignition interlock device and T.J.'s driver's licence had a condition limiting him to operating only those vehicles equipped with such a device. The appellant was not in the vehicle at the time it was pulled over by police during a routine R.I.D.E. stop.

3The appellant confirmed that she loaned the vehicle to T.J. without checking or inquiring about his driver's licence status. She regrets her decision and states that she should have exercised better judgement. She does not dispute the Ministry of Transportation (MTO) record which shows that the driver is required to have an ignition interlock as a result of a Criminal Code suspension under section 41 and 43 of the Highway Traffic Act (the "Act") from a conviction dating back to February 2019. Of note is that the driver is eligible to exit the ignition interlock program, however, he has not provided the MTO with the necessary document(s) and, therefore, remains on the interlock program and subject to penalties under the Act.

4Subsection 55.1(2) 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 at the time of its detention is under suspension for certain Criminal Code offences. In this case, the appellant's vehicle did not have an ignition interlock device which was a condition for him to be operating a vehicle.

5As a result, police impounded the vehicle pursuant to s. 55.1(1)(1) of the Act.

ISSUE

6The appellant appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on s. 50.2(3)(d) of the Act.

RESULT

7Having considered the parties' evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship, as the appellant has reasonable alternatives to the impounded vehicle. I therefore dismiss the appeal and confirm the impoundment.

ANALYSIS

8The appellant argues that the impoundment will cause exceptional hardship. The respondent argues that the appellant has access to other transportation. She has been able to maintain her household and has been able to attend all personal appointments and appointments for her children.

9As a first step, s. 10(1) of O. Reg. 631/98 ("Regulation") sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle.

10Section 10(4) of the Regulation provides that, in order to show that no alternative to the impounded vehicle is available:

"...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."

11The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives to the impounded vehicle, then an appeal on the basis of exceptional hardship cannot succeed. For the reasons set below, I find that the appellant has failed to discharge the threshold burden of establishing on a balance of probabilities that there are no reasonable alternatives to the impounded vehicle. She therefore does not meet the test for exceptional hardship, as set out in the Regulation, based on the alternatives available to her.

12It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that her boyfriend, T.J., was driving at the time it was impounded. The appellant states that she had no reason to believe that T.J. did not have a valid driver's licence free of any conditions. She states that she will take precautions in the future to ensure that anyone she loans her vehicle to is properly licenced to avoid a similar situation. At the hearing, she spoke about the inconvenience and disruption the impoundment has caused her.

13To that end, the appellant states that the impoundment has created hardship for her and her family. She is a single mother with four children, three of whom still live at home. They are aged 9, 11 and 16. She states that the impounded vehicle is their only means of transportation. She also relies on social assistance for support. She states that without the vehicle she cannot look for work and support her family.

14That said, the appellant did not offer any evidence to demonstrate on a balance of probabilities that she had no alternative to the impounded motor vehicle, as required by s. 10(4) of the Regulation, including whether she can make do without the impounded vehicle.

15The appellant also states that she does not have access to another vehicle and cannot afford to rent a car. However, she went on to testify that she has access to other options, such as taking an Uber or taxi if necessary. These efforts and availability of alternatives to the impounded vehicle makes her grounds of exceptional hardship uncompelling.

16The appellant noted that one of her children lives with special needs and she is required to take that child to appointments from time to time. The appellant confirmed in her testimony that she has not missed any of those appointments and that some of her own medical appointments can be scheduled virtually.

17There was no compelling evidence to show that the appellant or her children needed daily transportation during the impoundment period. She has been able to obtain groceries including getting them delivered to her home.

18Given the above, the appellant failed to provide any compelling evidence to demonstrate exceptional hardship even if no other transportation options were available. I considered the fact that the impoundment of the vehicle is temporary in nature, and it appears that arrangements are in place to allow her to do without the vehicle for the duration of the impoundment period.

19At the hearing, the appellant spoke about her personal financial situation and the difficulty of paying the impound fees. Section 10(2)(a) of Ontario Regulation 631/98 state that the Tribunal shall not consider whether the impoundment will result in, "financial or economic loss to any person..."

20I find that the appellant does have reasonable alternatives. They have allowed her to continue her daily routine with no major disruption. She was able to make do without the impounded vehicle, as contemplated in s. 10(4). The loss of her vehicle is no doubt inconvenient, but she has considered and indeed taken advantage of opportunities to overcome this temporary loss. Importantly, s. 10(2)(a) of the Regulation expressly disallows me from considering inconvenience.

ORDER

21For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I confirm the impoundment order.