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Highways - Vehicle Impoundment. Farthing v. Registrar of Motor Vehicles
In Farthing v. Registrar of Motor Vehicles (Div Ct, 2026) the Divisional Court grants a JR, this brought against "the decision of Adjudicator Hans of the License Appeal Tribunal (“LAT”) .... denying her appeal seeking the return of her impounded vehicle", here where the impoundment was under HTA s.55.1(3). The JR was successful on 'exceptional hardship' (financial) grounds.
Here the court illustrates rarely-litigated (at this level) impoundment provisions and (LAT) procedures under the HTA [s.50.2 'Appeal of a long-term vehicle impoundment for driving while suspended', 55.1 'Long-term vehicle impoundment for driving while suspended, in contravention of condition']:[8] On March 5, 2025, Ms Farthing pleaded guilty to refusing to provide a breath or blood sample, contrary to s. 320.15 of the Criminal Code, RSC 1985, c. C.46, in consequence of which her driver’s license was suspended for one year.
[9] One week later, on March 12, 2025, Ms Farthing was stopped by police when driving her vehicle. She was charged with driving while her license was suspended pursuant to s. 41 of the Highway Traffic Act, RSO 1990, c. H.8 (the “HTA”), and her car was impounded for 45 days pursuant to s. 55.1(3) of the HTA.
[10] On March 22, 2025, Ms Farthing appealed the impounding of her vehicle to the LAT pursuant to s. 50.2 of the HTA. She argued on this appeal that:(i) her licence was not suspended at the time of the impoundment (HTA, s. 50.2(3)(b));
(ii) she had exercised due diligence in attempting to determine that her licence was not suspended (HTA, s. 50.2(3)(c)); and
(iii) the impoundment would cause exceptional hardship (HTA, s. 50.2(3)(d)). [11] The LAT found that Ms Farthing’s license was under suspension, that she had not exercised due diligence to determine that her license was not under suspension, and that the impoundment would not cause Ms Farthing “exceptional hardship” within the meaning of the statutory scheme.
[12] On this application, Ms Farthing challenges the LAT’s decision in respect to due diligence and exceptional hardship.
Statutory Scheme
(a) Impounding a Vehicle
[13] Paragraph 55.1 of the Highway Traffic Act, RSO 1990, H.8 (the “HTA”) provides:(1) Where a police officer… is satisfied that a person was driving a motor vehicle on a highway in one of the following circumstances, the officer shall detain the motor vehicle that was being driven by the person:
1. While his or her driver’s licence is under suspension under section 41….
....
(2) ... the detained vehicle shall, at the cost and risk of the owner,
(a) be removed to an impound facility as directed by a police officer…; and
(b) be impounded from the time it was detained for the period described in subsection (3) or until ordered to be released by the Registrar under subsection (14) or under section 50.2. (b) Period Vehicle Impounded
[14] Vehicles can be impounded for 45, 90 or 180 days. In this case, the impoundment period was 45 days: HTA, s. 41(1). However, the vehicle is not released from the impound facility unless the towing and storage fees are paid; until they are paid, the vehicle remains in the impound facility and storage fees continue to accrue. If the vehicle is not reclaimed (and the fees paid) within six months, then the vehicle may be sold to recover the towing and storage fees.
[15] Ms Farthing could not afford to pay the towing and impound fees, and the car remained in the impoundment facility until Ms Farthing was able to arrange for a third party to pay the fees. That party has retained the vehicle until Ms Farthing is able to repay the fees that were paid, which totalled about $4,000.
(b) LAT Jurisdiction to Order Registrar to Release Vehicle
[16] Under s. 50.2(3)(d) of the HTA, the LAT may order the Registrar to release a vehicle where it is established “that the impoundment will result in exceptional hardship.”
[17] O. Reg. 631/98, s. 10, provides as follows in respect to determining whether “the impoundment will result in exceptional hardship”.(1) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, 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. 2) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,(a) inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an educational or training opportunity to any person. (3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and(d) 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). (4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), 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. [18] Where the LAT grants an owner’s appeal, the Registrar is required to release the vehicle to the owner and pay, on behalf of the owner, the impoundment fees: HTA, s. 50.2(7). As noted by counsel for the Registrar in oral argument, the LAT does not have the discretion to order the owner to pay some portion of the accrued fees: it is an “all or nothing” proposition. If the owner prevails, the Registrar pays all the accrued fees.
The LAT Decision
[19] The LAT found that Ms Farthing’s license was under suspension, and that she failed to exercise due diligence to determine that the suspension was in effect. It also found that Ms Farthing had not met the test set out in s. 10(3) of the Regulation, and therefore she had not made out “exceptional hardship” within the meaning of HTA, s. 50.2(3)(d).
[20] Ms Farthing does not challenge finding regarding her license suspension. She does challenge the due diligence finding on the basis of inquiries she made about the status of her license, and her unchallenged evidence that she did not receive notice of her suspension until two days after her car was impounded. We do not find it necessary to consider this argument in light of our conclusion that the LAT’s decision on the issue of exceptional hardship was unreasonable, but we would note that Ms Farthing’s argument on the due diligence issue was certainly tenable.
Exceptional Hardship Established on the Record Before the LAT
[21] Hardship from impoundment includes hardship experienced because of loss of use of the vehicle during the period the vehicle is impounded – including any period the vehicle cannot be recovered because the owner cannot afford to pay the fees. In this case, because of Ms Farthing’s difficult financial circumstances, given her responsibilities for two children, including one with special needs, she could not recover the vehicle, leading to increased fees. She then faced loss of the vehicle entirely - a risk she still faces as a result of the accrued fees.
[22] The LAT restricted its analysis to the immediate hardship of the 45-day suspension. This focus failed to take account of the exceptional long-term hardship to be faced by Ms Farthing.
[23] On the record before the LAT, Ms Farthing is a single mother, living on Ontario Works, who is responsible for caring for two young children. One of the children has special needs requiring transport to programs and medical appointments. Ms Farthing is unable to reasonably manage without her vehicle for the long term. Ms Farthing had a reasonable plan – to have her mother do the family’s driving using Ms. Farthing’s car during Ms Farthing’s license suspension. On the record before the LAT, Ms Farthing was not meeting her children’s needs for the short time she was without the use of the vehicle, and that situation would become increasingly difficult over time. She was unable to get her children to school and appointments, and to obtain their medications, without use of her vehicle. With respect, this was not a close call: Ms Farthing was living on the edge of making ends meet and caring for her children. Loss of use of her vehicle tipped her family’s situation across the line. Failure to grant her relief will see her lose her vehicle, with disastrous results for her and her children. If these consequences do not constitute “exceptional hardship” it is hard to imagine what would.
Remedy
[24] The Registrar argued that this court should return this case to the LAT if we decided to set the impugned decision aside. This would be the usual remedy. However, this case has already taken far too long given the nature of the hardship suffered by Ms Farthing.
Order
[25] We would prefer to order the amount claimed by Ms Farthing - $3,995 - be paid to her forthwith. However, there is a process established by the Registrar to determine the amount payable – whether to the impound facility or in reimbursement to a claimant. Counsel for the Registrar explained that the Registrar had sought but had thus far been unable to obtain confirmation of the proper amount from the impound facility because of an issue with records retention by that facility. We would give the Registrar a further short period to follow up on this issue.
[26] The application is granted and the impugned LAT decision is set aside. In its place, we order that the Registrar reimburse Ms Farthing for the payment made to her benefit to the impound facility (the “Payment”). The Registrar should treat the invoice for $3,995 tendered by Ms Farthing in the fresh evidence as evidence of the Payment. The Registrar shall complete its due diligence and advise Ms Farthing of its decision respecting the amount payable to her within 14 days of this decision and shall make the payment within a reasonable time after rendering its decision. This panel is seized of any issues arising respecting reimbursement of the Payment.
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