Licence Appeal Tribunal File Number: 16576/MVIA
In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an Impoundment of a Motor Vehicle pursuant to Section 55.1 of the Act.
Between:
Louise Kechego
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Louise Kechego
For the Respondent:
Sadia Ashraf, Agent
Heard:
January 6, 2025
OVERVIEW
1The appellant, Louise Kechego, appeals the 45-day impoundment of her 2013 Chevy Traverse motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on December 12, 2024, after police found it being operated by her son (R.A.), while his driver’s licence was under a Criminal Code suspension. The appellant states that she asked R.A. to use her vehicle to drive to a nearby town to pick up her daughter. The appellant states that she was unable to drive there herself because she was attending to her husband who was hospitalized at the time. R.A. was subsequently pulled over while on his way to pick up his sister. Police impounded the vehicle once they discovered he was operating it with a suspended driver’s licence.
3The appellant filed her appeal with the Licence Appeal Tribunal (the “Tribunal”) on December 17, 2024. She is relying on the ground that the impoundment will result in exceptional hardship. The appellant regrets her decision to allow R.A. to drive the vehicle despite knowing his licence was under a criminal code suspension.
4Subsection 55.1(1) 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 is under suspension at the time for certain Criminal Code offences. In this case, R.A.’s driver’s licence was under suspension for impaired driving for an incident that occurred on January 4, 2023. He was convicted recently on December 3, 2024, when he learned that his driver’s licence will be suspended until December 3, 2025.
ISSUE
5The appellant appeals the impoundment on the ground that the impoundment will result in exceptional hardship, relying on section 50.2(3)(d) of the Act.
6The onus of proving this ground of appeal rests with the appellant. To succeed in her appeal, she must establish this ground on a balance of probabilities.
RESULT
7Having 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.
ANALYSIS
8It is undisputed between the parties that the appellant is the owner of the impounded vehicle, that R.A. was driving it at the time it was impounded, and that R.A.’s driver’s licence was under a Criminal Code suspension at the time. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.
Will the appellant experience exceptional hardship as a result of the impoundment?
9I find that the appellant has shown that the impoundment will cause exceptional hardship for the reasons which follow.
10As 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
11The appellant offered evidence to demonstrate that she has no alternative to the impounded motor vehicle.
12At the hearing, the appellant testified that her personal financial situation is dire and she simply does not have any money. She explained that she was homeless at the time of the impoundment. To make matters worse, the appellant explained that all of her clothing and personal effects, including those of her husband and her one-year-old grandson who she cares for, are in the impounded vehicle.
13The appellant and her family are currently staying with her mother on Chippewa of the Thames First Nation. She does not have access to another vehicle and is subject to an ignition interlock herself. She and her husband were able to get a ride from her sister when they were discharged from the hospital, but since then they have been stuck at Chippewa of the Thames First Nation with no means of transportation.
14The appellant stated that other options such as Uber and taxi are not available to her. She has personal doctor’s appointments scheduled for this week that she is not able to attend and has not been able to reschedule as of yet. Moreover, the appellant relies on her vehicle to transport her husband to his doctor’s appointments which are frequent given his failing health and underlying medical conditions. He usually has appointments several times a month with his doctor being about an hour away by car.
15Presently, the appellant and her family are surviving with the assistance of her mother who currently lives on Chippewa of the Thames First Nation. She does not have access to a pharmacy without her vehicle given the distance. The appellant states she would normally pick up her medication from her pharmacist in London, Ontario which is approximately 35 minutes away by car.
16The appellant has explored other options such as renting a car, however it is cost prohibitive since she barely has enough money to get by. She has been getting her food through her mother who has grocery delivered to her at the First Nation. This requires the entire family to ration what may be a limited supply and intended for one person.
17The appellant does not have an alternative vehicle. I am satisfied that she has considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
18Having satisfied myself that there is no alternative to the impounded vehicle available to the appellant, I must now consider under s. 10(1)(a) and (b) of the Regulation whether the impoundment will result in a threat to the health or safety of any person who is 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. I may also consider, under s. 10(2) and (3), financial or economic loss, or loss of employment, but only if the owner demonstrates that:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 456/10, s. 3.
19The appellant states that she has no choice but to miss doctor’s appointments without her vehicle. Her husband, who has a number of health concerns, is also at risk of missing regularly scheduled doctor’s appointments. He typically must see his doctor 3 or more times per month. The appellant advised she has not been able to obtain her medication or medication for her husband. I find that this may have a detrimental impact on the health and safety of herself and others who rely on the vehicle.
20The appellant explained that she does not have any friends who are able to assist her with transportation. Suffice to say, the loss of her vehicle has significantly interfered with her daily routine and further complicated her already difficult situation. She has not been able to access the impounded vehicle to request the return of her family’s personal items. She is concerned that without the return of the vehicle and without the means of retrieving it from the impound facility, she may lose the vehicle and all its contents. These contents represent everything she has.
21I have considered whether the impoundment will result in a threat to the health and safety of anyone ordinarily transported in the appellant’s vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used. I find that there is a threat to the health and safety of the appellant’s husband who is unable to attend important doctor’s appointment for a medical condition which he was recently hospitalized. I also find that the appellant, who has been experiencing her own medical concerns, has been placed in a difficult situation not being able to see her doctor.
22I accept the appellant’s testimony that her financial situation is precarious and the impoundment will further exacerbate her personal situation. So far, the appellant and her family have managed with the assistance of her mother but this appears to be a temporary arrangement which may not be sustainable for much longer.
23Under the circumstances, I conclude that the appellant has met the burden to demonstrate that there are no reasonable alternatives available to her and that the health and safety of others who rely on the vehicle will be placed in danger due to the impoundment.
24Based on the evidence, and in accordance with s.10 of the Regulation, I find that the appellant has no reasonable alternative to the impounded vehicle and the loss of the vehicle will result in a threat to the health or safety of persons ordinarily transported by the motor vehicle, namely herself and her husband. In addition to this, I find that the appellant has explored all possible alternatives and they are all unavailable or not financially feasible. Her living arrangements are precarious and the loss of her vehicle and personal items has contributed to her already difficult set of circumstances. As such, I am satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.
ORDER
25For the reasons set out above, pursuant to the Tribunal’s authority under s. 50.2(5) of the Act, I order the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: January 9, 2025