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: 2020-09-28

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:

Mohammad Dost

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Mariam Dost, Representative

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By teleconference, on September 25, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Mohammad Dost appeals the 45 days impoundment of his motor vehicle on the grounds that the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on August 20, 2020 and a hearing was held on September 25, 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)(d) which states that the Tribunal may order the Registrar to release the motor vehicle where the impoundment will result in exceptional hardship.

8Section 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.

9Section 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.

10If 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.

11Sections 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.

12The 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.

13Following 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:

Is there No Alternative to the Impounded Vehicle?

14The first question I need to consider is whether there is no alternative to the impounded vehicle. For the reasons set out below, I find there are alternatives.

15Due to linguistic barrier and other issues, the appellant did not attend the hearing and did not testify. His daughter, Mariam Dost attended on his behalf. It was also Ms. Dost who was the alleged driver of the vehicle at the time of impoundment. Ms. Dost’s licence was suspended, and she took the vehicle without her father’s knowledge. Ms. Dost filed the appeal in order to try to remedy the difficulties the impoundment has caused her father.

16The evidence before me confirms that the appellant owns two vehicles including the one that has been impounded, as well as a Honda hatchback. According to Ms. Dost, her father uses the impounded vehicle for work. The appellant has two jobs. He works full time as a delivery driver for a food bank in Ottawa, and he also works as an Uber driver. Uber has requirements that the vehicles used by their drivers to meet certain safety standards. The appellant cannot use his Honda for his Uber work, in part because it has an engine problem.

17Ms. Dost also testified that her father uses the impounded vehicle on a daily basis, and that the other family members, namely her mother and her sister also rely on the appellant to drive them to school or to medical appointments in the impounded vehicle, even though they both have a valid driver’s licence. In support of the appeal, Ms. Dost submitted a timesheet of her father’s work at the food bank from July 23 to August 22, 2020, showing that he has to pick up and deliver food from various locations in Ottawa as part of his work.

18Ms. Dost stated that the Honda is not an alternative because of the engine problem. It will cost the appellant several thousand dollars to repair, which he could not afford.

19Ms. Dost explained that since the impoundment, her family has resorted to other means of transportation including renting vehicles from friends and families for $30 to $50 a day so that the appellant could go to work. Ms. Dost’s mother has relied on others to drive her to medical appointments, which take place on a bi-weekly basis, while her sister has bought bus passes to go to school and other appointments. Ms. Dost, who is in receipt of ODSP benefits, is trying to find way to help pay for the rental costs for her family. She too has access to emergency bus passes.

20Ms. Dost testified that her father had a stroke after he found out his vehicle has been impounded. He did not know about Ms. Dost’s licence suspension. Ms. Dost cannot confirm when she advised her father of the impoundment, only recalling that it was a day or two later. The appellant went to see his family physician who then referred him to a neurologist for a follow up evaluation. For the first two weeks immediately following the impoundment, the appellant was not able to go to work. He has since returned to work at the food bank in September. The appellant is still not able to resume his work as an Uber driver.

21Under cross examination from the Registrar, Ms. Dost was asked about the timesheet which shows that the appellant was working on August 20, 2020 – the day his vehicle was impounded - from 9:00 a.m. to 3:00 p.m. Ms. Dost testified that a friend of hers came to pick her up from her home at around 1:30 p.m. and about an hour later, the vehicle was impounded. Ms. Dost was asked, but could not explain, how her father went to work that day and what vehicle he was using for his delivery work.

22Ms. Dost also was not able to provide information about how much work her father was doing for Uber.

23Ms. Dost at first said she was unaware her father has a Honda. When asked where the Honda was parked, Ms. Dost at first replied it was “at home”, and then later changed it to her uncle’s home.

24Ms. Dost was asked why the appellant renewed the “sticker” or vehicle permit for his Honda, just four days before the impoundment, if the vehicle could not be used due to engine problem. Ms. Dost replied that her father is law abiding and therefore will always renew all licences on a timely fashion.

25When asked about how her father attended medical appointment with his family physician after the impoundment, Ms. Dost explained that she has a brother, who does not live with the family, who took their father to the appointment and to do the blood work.

26It is unfortunate that the appellant was not able to participate at the hearing as the inconsistencies between Ms. Dost’s testimony and the documentary evidence could have been clarified. For instance, how did the appellant attend work on August 20, 2020, when did he find out about the impoundment and what vehicle did he use when he could not find the impounded vehicle, and finally whether or not the Honda was being used, and where it was parked throughout the relevant time period.

27Putting aside these inconsistencies, the totality of the evidence before me confirms that there are a number of alternatives available to the appellant and his family. To start, the appellant has already returned to work as a delivery driver with the food bank, which is made possible by renting vehicles from family and friends. The appellant’s wife has also been able to get to her biweekly medical appointments by relying on others to transport her. The appellant’s son has also helped take the appellant to his medical appointments. The appellant’s daughters have bus passes, and according to the Registrar, there is 24 hour bus service serving the appellant’s neighbourhood. So, even if the appellant’s other vehicle is out of commission, a finding that I hesitate to make in light of the insufficient and contradictory evidence before me, the appellant and his family members are already availing themselves of several alternative modes of transportation since the impoundment.

28In conclusion, based on the evidence before me, I find the appellant has not established that there is no alternative to the impounded vehicle.

Is there threat to the health or safety of any person ordinarily transported by the motor vehicle?

29Even 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.

30While Ms. Dost testified that her father has suffered a stroke due to the impoundment, there is no medical evidence before me to support that assertion. Ms. Dost submitted a top part of a lab report which is supposed to be the appellant’s blood work taken a few days after the impoundment. Instead of submitting the entire report, Ms. Dost has only submitted the letterhead of the lab, with no details about the blood test results. Ms. Dost also included a note from the appellant’s family physician which reports that the appellant had a recent memory loss of 30 minutes to an hour. The note did not mention any stroke. In any event, the appellant has returned to work, a positive sign that his health condition is not at risk. Besides, no appointment has been confirmed with the neurologist.

31I have also considered the health of the appellant’s wife who, according to Ms. Dost, suffers from mental health issues and thyroid problem. But as Ms. Dost has confirmed, her mother has been able to continue to attend her bi-weekly medical appointments, thanks to friends and family members. There is no information before me to suggest that her health is at risk due to the impoundment of the vehicle in question.

32I note that the impoundment has caused financial hardship on the appellant’s family, and I accept that the appellant is still unable to resume his work as an Uber driver as a result. I also appreciate that Ms. Dost is trying to alleviate her father’s burden by filing this appeal and by finding ways to help pay for the car rental costs notwithstanding her own financial challenges.

33I am extremely sympathetic to the appellant’s plight. However, my hands are tied when it comes to determining whether exceptional hardship will result from an impoundment. As 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 a number of alternatives, and the appellant has not demonstrated that anyone’s health and safety is being threatened as a result of the impoundment.

34Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

35For 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.