Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-09-08

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:

Ghasem Alizadeh Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Ghasem Alizadeh For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing:

By teleconference September 3, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Ghasem Alizadeh appeals the 45 days impoundment of his motor vehicle on the ground that the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on July 4, 2020 and a hearing was held on September 3, 2020, by teleconference, to consider the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

3For the reasons set out below, I confirm the impoundment.

B. ISSUES:

4The issue under the appeal is whether the impoundment will result in exceptional hardship.

C. LAW:

5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations.

6The impound period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of s. 50.2(3)(c) or (d) which states that the Tribunal may order the Registrar to release the motor vehicle where

(c) the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1); or

(d) that the impoundment will result in exceptional hardship.

8Regarding the ground of due diligence, the appellant must show that he took “all reasonable care” to avoid the particular event (in this case, letting a suspended driver use his vehicle).

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.

10Section 10 (4) sets out what an appellant must show in order to meet this initial prong of the test:

10 (4) In order to show that no alternative to the impounded motor 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.

11If the Tribunal finds that the appellant has no alternative to the impounded vehicle, s.10(1) then it shall 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. O. Reg. 456/10, s. 3.

12Sections 10 (2) and 10 (3) together establish other factors that may or may not be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) “inconvenience to any person” in determining exceptional hardship.

13The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

14Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

D. ANALYSIS:

Preliminary Issue – Admission of New Evidence

15While the appellant did not specifically list it as a ground for appeal, he made arguments with respect to due diligence at the appeal. He stated that he sold his motorcycle to a friend of his brother for $6000. He explained that he and the purchaser entered into a bill of sale which stated the purchaser would pay $2000 upfront, and the remaining $4000 upon registration. Due to storage issue, the appellant let the purchaser take his motorcycle after the latter paid the initial $2000. The appellant further claimed that he and the purchaser signed a contract stating that the purchaser could not operate the motorcycle until full payment has been made. Two days after entering into this agreement, however, his vehicle got impounded.

16The appellant did not submit the bill of sale nor the contract to the Tribunal by the September 1, 2020 deadline as provided in the Case Conference Report and Order. The appellant explained that while he was aware of the September 1, 2020 deadline, he understood it to be the timeline for him to withdraw his appeal. In view of the appellant’s explanation, I exercised my discretion to allow the appellant to submit the bill of sale at the hearing.

17Contrary to what the appellant has stated, however, the bill of sale did not contain any clause with respect to driving restrictions. It read simply:

Selling my 2007 Honda CBR60RR to [the purchaser] for $6000 VIN [#] $2000 and $6000 upon delivery.

18The bill of sale was dated June 30, 2020, four days before the impoundment. It contained a copy of the purchaser’s OHIP card, but not his driver’s licence.

19Since the contract did not in fact prohibit the purchaser from operating the vehicle before the sale was final, and there is no indication that the appellant has made any effort to ascertain the purchaser’s driving record, I therefore find the appellant has not provided any evidence to support a due diligence argument. In the end, in any event, the appellant did not pursue this line of argument.

Will there be Exceptional Hardship

20I further find the appellant has not established that the impoundment will result in exceptional hardship.

21The evidence provided by the Registrar shows that the appellant owns two other vehicles, a motorcycle and a BMW four door sedan.

22The appellant readily admitted that he does not have any problem with transportation because of his other vehicles.

23The hardship faced by the appellant arises from the following factors: First, the appellant has to pay the impoundment cost out of his own pocket because the purchaser has stopped responding to his call and refused to pay the remaining balance of $4000.00. Second, the appellant would have to put his motorcycle back on the market for sale, this time at a lower price because the summer season is over and because of depreciation. As such, the appellant has suffered a significant financial loss as a result of the impoundment.

24As noted above, in order to establish exceptional hardship, the first requirement in the Regulation is that there is no alternative to the impounded vehicle. If there is, the Tribunal needs not consider any other requirements. In this case, the appellant does have an alternative, namely, two other vehicles that he could use. The appellant concedes that he has no problem with transportation. On that basis alone, I would not be able to find in the appellant’s favour.

25Even assuming there were no alternative to the impounded vehicle, the appellant has not demonstrated the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.

26I appreciate that the appellant has suffered a financial loss. But the legislation does not permit me to grant the appeal on this basis alone.

27Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

28For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant’s motor vehicle.