Licence Appeal Tribunal File Number: 16618/MVIA

In the matter of an appeal from an impoundment of a motor vehicle pursuant to section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), under section 50.2 of the Act.

Between:

Robert McGirr

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Robert McGirr

Natalee-Rose White, Representative

For the Respondent:

Sadia Ashraf, Agent of the Registrar

Heard by teleconference:

January 24, 2025

OVERVIEW

1Robert McGirr, the appellant, appeals from the impoundment of his 2015 Chevrolet Malibu on January 2, 2025 for 45 days under section 55.1 of the Act.

2The owner of a motor vehicle that 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 grounds that he exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was detained for impoundment was not then under suspension, and that the impoundment will result in exceptional hardship, pursuant to subsections 50.2(3)(c) and (d) of the Act, respectively.

4The appellant filed a Notice of Appeal with the Tribunal on January 7, 2025.

ISSUES

5The issues to be determined are:

i. Whether the appellant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was detained for impoundment, was not then under suspension; and

ii. Whether the impoundment will result in exceptional hardship.

RESULT

6The impoundment will result in exceptional hardship. The vehicle is ordered released.

ANALYSIS

Due Diligence

7Because the appellant’s circumstances meet the ground for exceptional hardship, it is not necessary to analyse whether the appellant exercised due diligence in attempting to confirm the licence of the driver of the vehicle was not then under suspension.

Exceptional Hardship

8I find the impoundment will result in exceptional hardship.

9Ontario 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.

Alternatives to the impounded vehicle

10The appellant testified that he lent the vehicle to Robert Graham (the “Driver”), a distant cousin, not knowing that his licence was under suspension. Following the death of his spouse, the Driver moved in with the appellant in August 2023. They lived in the appellant’s trailer and later moved to a rented cabin “off-grid”. The appellant’s daughter submitted that in October 2024, the appellant secured an apartment of his own in Mindemoya, Manitoulin Island, which was better suited and safer, considering his declining health (he has been diagnosed with terminal cancer and suffers from memory loss). The new apartment has services (electricity and water), is located on the ground floor, and closer to the hospital in Mindemoya.

11Due to his declining health the appellant chooses not to drive on his own. Prior to the impoundment he had been relying on the Driver and the subject vehicle, or his daughter and her vehicle, for most of his transportation needs (getting household supplies, groceries, and to and from medical appointments). Each live approximately 20 to 30 minutes drive away from the appellant, near Spring Bay.

12The appellant’s daughter testified that her family’s sole vehicle, a 2012 Grand Cherokee, is not in good condition, requires front-end maintenance and is currently in a garage for maintenance and repairs. She and her husband own a second vehicle, a 1990 GMC camper van, which is, she testified, not driveable. When the Grand Cherokee is working, she uses it to support her father’s transportation needs as required. Since the impoundment, she has used it to help transport her father to and from medical appointments.

13The appellant’s daughter testified that if it were necessary to help her father and the Grand Cherokee was unavailable, she would have to borrow a neighbour or friend’s vehicle. She added that if her father needed to travel to hospital in Sudbury, she has only Grand Cherokee to help get him there.

14The appellant’s daughter testified that since the impoundment the appellant has been able to get his groceries, pharmaceuticals and supplies with her help, and that of his neighbours. A Meals on Wheels service is available to the appellant at his current location, and he has used it on occasion since the impoundment.

15Since a recent hospital stay, the appellant also receives homecare from a personal support worker (“PSW”) two days per week, and a palliative care nurse continues to visit him approximately once per month.

16The appellant testified that he lives approximately 3 to 4 kilometres from the nearest hospital, Manitoulin Health Centre, in Mindemoya, which has an emergency department. She testified that the appellant also attends Sudbury Hospital (Health Sciences North) for care, about 2.5 to 3.0 hours drive away.

17The appellant testified that he depends on approximately $2,200.00 per month ODSP income to support his rent and expenses. The appellant’s daughter relies on CPP disability income, and her husband works in a nearby general store, to which he can walk from their home. The appellant’s daughter testified that the impoundment fees are unaffordable and that the Driver, who also relies on ODSP for his principal income, cannot afford to help the appellant pay the fees. The appellant submits that he has a loan outstanding on the impounded vehicle that, together with the $3,600.00 he anticipates will be owing in impoundment fees, exceed the value of the vehicle.

18The appellant seeks an order from the Tribunal to release the vehicle on the grounds that the impoundment will result in exceptional hardship.

19The respondent submits that the appellant has alternatives to the impounded vehicle and therefore the impoundment will not result in exceptional hardship. It submits that the appellant does not drive on his own but has the help of his daughter and her vehicle, and friends and neighbours with their vehicles, to get household supplies and attend medical appointments. It adds that the appellant has not missed any medical appointments.

20The respondent submits that the appellant is getting homecare from a PSW at least twice per week and lives nearby a hospital and retail services. It submits that the impoundment is not threatening the appellant’s health and safety.

21The respondent seeks confirmation of the impoundment.

22I find, on a balance of probabilities, that the impoundment will result in exceptional hardship because the appellant has no reasonable alternative to the impounded vehicle.

23In considering whether exceptional hardship will result from the impoundment, I am guided by the criteria set out in section 10 of the Regulation.

24Subsection 10(1) stipulates that I may consider whether no alternative to the impounded vehicle is available, and only if I conclude there is no alternative may I consider other consequences of the impoundment such as financial loss, or the health and safety of persons ordinarily transported by the impounded vehicle.

Determining if there is no alternative to the impounded vehicle

25I refer to subsection 10(4) in considering whether the appellant has “no alternative”. As noted above, an appellant must demonstrate that every reasonable option has been explored and inquired into that could eliminate or adequately mitigate any threat to the health and safety of any person ordinarily transported by the vehicle, in this case the appellant. It also specifically tasks the appellant to consider if he could use another vehicle or do without a vehicle during the impound period.

26Subsection 10(4) speaks to the necessity of alternatives being reasonable in terms of their ability to eliminate, or at least adequately mitigate, any threats to the health and safety of the person being transported.

27The appellant faces a threat to his health and safety due to his declining cognition and failing health. For example, in early January, he locked himself out of his apartment and the events that followed resulted in him spending nearly two weeks in hospital.

28Analysing whether the appellant has, or has not, an alternative, requires considering the possible transportation options and services available to him. In many parts of Ontario the transportation options might include municipal transit, for-hire services (taxi, Uber), renting a vehicle, or borrowing vehicles or rides from family, friends or neighbours. In the category of doing without a vehicle, options might include sourcing one’s retail needs (groceries, pharmaceuticals) through delivery services, and/or arranging homecare or in-home nursing care for medical and health needs.

29I consider that the range of options the appellant has available to him, and that he can access, and the prevailing circumstances of the appellant, for example his age, cognition, health, and financial means, set the context for considering whether his possible alternatives are reasonable, in terms of adequately minimizing any threats to his health and safety. The question becomes whether the appellant has any alternatives that reach the threshold of being reasonable, in the circumstances. I find that his possible alternatives do not reach that threshold.

The appellant’s possible alternatives

30The appellant’s location in Mindemoya precludes the typical, reasonable alternatives that might be available to a vehicle owner whose vehicle was impounded. There is no public transit, no Uber, and a google search reveals only one taxi service serving Central Manitoulin, approximately, 10 km away in M’Chigeeng. The next closest taxi is 42 km away in Little Current.

31There is no evidence of the appellant using the taxi service and it would not adequately mitigate threats to the appellant’s health safety. The appellant has little discretionary funds, and, considering the appellant’s health, I am not confident that he could successfully access the service.

32The appellant’s low income makes renting a vehicle unaffordable and therefore, unreasonable.

33Home-based nursing care and Meals on Wheels are undoubtedly helpful for the appellant, but they do not, on their own, adequately mitigate any threats to the appellant’s health and safety. For example, they do not help the appellant to access clinic or hospital-based services or get household supplies and pharmaceuticals, the way having a reliable vehicle or ride would.

34Prior to the impoundment, he had relied on the Driver or his daughter to help get his household supplies and attend medical appointments. The Driver can no longer be relied on, and the daughter’s vehicle is not dependable.

35I find the possible help of neighbours and friends, lending or using their vehicles to drive him, would not adequately minimize the threats to the appellant’s health and safety. The only evidence of friends with vehicles who could potentially support him, are friends of his daughter. It is not clear they could be relied on if the appellant had an urgent need.

36The appellant’s daughter testified that he was getting some support from neighbours, but his health condition and the recent experience of being locked out of his apartment suggests that relying on neighbours will not be a reliable or adequate way to mitigate risks to his health and safety.

37The appellant’s daughter remains the most likely person to provide the appellant with an adequate alternative. He clearly relies on her to help navigate the circumstances he is confronted by at this stage of his life. However, his daughter’s sole vehicle is not dependable. It can’t be counted on.

38I recognize that the hospital in Mindemoya is only 3 to 4 kilometres from the appellant’s home and that 911 emergency services are available to him for urgent health needs. However, the appellant established that he also needs continued access to Health Sciences North in Sudbury. His current situation gives him no reliable, affordable means to get there.

39Accordingly, and considering his precarious health circumstances, I find that the appellant has inquired and looked into all reasonable options that would adequately mitigate any threats to his health and safety, and he has no reasonable alternative. I therefore find the impoundment will result in exceptional hardship.

40In the future, the appellant should not risk permitting his vehicle to be operated by a driver without driving privileges. A second such occurrence (with the Driver, or any other driver whose licence was suspended for a Criminal Code related driving conviction) could result in a 90-day impoundment, not a 45-day, and the exceptional hardship ground would be unavailable to him in seeking an order for release.

Conclusions

41I find, on a balance of probabilities, that the appellant met his burden in demonstrating that the impoundment will result in exceptional hardship.

ORDER

42Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.