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
Between:
Yasser Ahmad
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Yasser Ahmad, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: July 23, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Yasser Ahmad (the “appellant”), appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on June 19, 2021. At the time of the impoundment, the driver, the appellant’s brother Ibrahim Hasan (“Hasan”), was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that he 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, and that the impoundment will cause exceptional hardship.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
4The first issue to be determined in this appeal is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.
5The second issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
EVIDENCE AND ANALYSIS
6The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2008 Lexus;
(2) on June 19, 2021, the police discovered the impounded vehicle being driven by Hasan;
(3) Hasan’s licence was under suspension at the time it was detained for the purpose of impoundment. It had been suspended multiple times starting in 2008 for various offences, the most recent being a lifetime suspension for failing to provide a breath sample on August 31, 2018. Mr. Hasan’s driving record indicates that his licence expired on January 17, 2017.
7The evidence at the hearing was that the appellant resides in Greenfield, Wisconsin. He has two brothers who live in Mississauga. One of his brothers, who was only identified as Mohamed at the hearing, had possession of the impounded vehicle since the spring of 2020. Mohamed works as a handyman and has his own pickup truck which he uses for that occupation. Sometime in the spring of 2020, Mohamed’s wife started selling and delivering home made meals to customers. She required a vehicle in order to do this and the appellant loaned Mohamed and his wife the impounded vehicle.
8In June 2021, Hasan was being evicted from his apartment and needed a vehicle to assist him in moving. The appellant told Mohamed to give Hasan the vehicle for a couple of days for that purpose. It was during this time that the vehicle was impounded.
Due diligence
9The appellant says that he did not know that Hasan’s licence was suspended when he allowed him to take possession of the impounded vehicle. The appellant says that when Hasan asked to borrow the vehicle, he asked him if he had a valid driver’s licence and Hasan said that he did. The appellant did not ask to see Hasan’s licence and did not take any further steps to ensure that Hasan’s licence was valid before allowing him to use the vehicle.
10Hasan’s driving record shows that he obtained his Class G licence on March 2, 2006, and that his licence expired January 17, 2017. Between those dates, Hasan’s licence was suspended 14 times for various offences, and he was issued a lifetime suspension on August 31, 2018, as the result several convictions for failing to provide a breath sample.
11The Registrar submitted evidence showing that on December 21, 2016 and on September 12, 2017, Hasan was charged with refusing to provide a breath sample while driving vehicles belonging to the appellant. Hasan was unlicensed at those times and the appellant’s vehicles were impounded for seven days on both occasions.
12The Registrar submitted evidence that Hasan was convicted of various offences while driving a vehicle owned by the appellant, while unlicensed, on October 7, 2016.
13This ground of appeal requires the appellant to show that he took reasonable steps to determine that the suspended driver’s licence was not suspended. In this context, particularly with the Hasan’s history of using the appellant’s vehicle while suspended, due diligence required more than making assumptions of the facts. It required steps to be taken to confirm Hasan’s assertion that his licence was not suspended. Under this ground of appeal, due diligence often requires the owner to have asked to see a valid licence before permitting the driver to drive the car. The requirement may, of course, be greater depending on the circumstances.
14The appellant had no reasonable basis to believe that Hasan had a valid licence when he allowed him to drive the impounded vehicle, and the steps he took to determine whether Hasan had a valid licence were inadequate to satisfy the test for due diligence in the circumstances. Hasan has been convicted of numerous driving offences leading to a lifetime driving ban in 2018. He was convicted on at least three prior occasions of offences committed while driving vehicles owned by the appellant. Two of those offences involved the use of alcohol while driving. The appellant should have, at a minimum, asked to see a valid licence before allowing Hasan to drive the vehicle. Had he done so Hasan would not have been able to show him a licence valid on its face, given that it had been expired since 2017.
15I find that the appellant has failed to prove on a balance of probabilities that he exercised due diligence in attempting to determine that Hasan’s driver’s licence was not under suspension when the vehicle was detained. The appeal based on s. 50.2(3)(c) of the Act must fail.
Exceptional Hardship
16Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
17Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
18If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will almost always fail. Only where the owner has established that there is no alternative available is the Tribunal able to consider whether the impoundment will result in exceptional hardship.
19The appellant testified that he has not suffered exceptional hardship as the result of the impoundment. He lives in Wisconsin and had given the vehicle to his brother, Mohamed, primarily for the use of Mohamed’s wife. The appellant alleges that the impoundment has resulted in exceptional hardship for Mohamed and his wife.
20Neither Mohamed, nor Mohamed’s wife, gave evidence at the hearing. The only evidence that was presented as to hardship consisted of the appellant’s evidence of complaints made to him by Mohamed and his wife about the impoundment of the vehicle. They have told the appellant that Mohamed’s wife’s food preparation and delivery business has lost customers because she is unable to make deliveries, that Mohamed has had to leave his work occasionally to drive their son to doctor appointments and extracurricular activities, and that Mohamed’s wife has been unable to participate in charitable activities at the Mosque which include supplying food to those in need.
21The appellant was unable to give any specific evidence about whether Mohamed and his wife considered reasonable alternatives to the impounded vehicle.
22The appellant stated that it was not possible to make meal deliveries using public transit, but could provide no specifics about that, such as how large the deliveries are, how far away the customers are, or how convenient the public transit system is in the area. The appellant could not say whether the use of ride-sharing services or taxis is a financially reasonable option. The appellant said that some of the customers were picking up their orders but could not say how many were doing that. The appellant did not present any evidence of how often Mohamed needed his truck or when it might be available for his wife’s use in her business.
23The appellant was told by either Mohamed or his wife that a trip to their son’s doctor would require two transfers on public transit and that this was inconvenient, but there was no evidence as to how many such trips were necessary, whether taxi or ride-sharing services were an option, or whether a vehicle could be borrowed from family or friends for such purposes. The appellant testified that Mohamed left work to take his son to at least one doctor appointment and to a soccer game, and that Mohamed found this to be very inconvenient, but gave no evidence as to whether this was anything more than an inconvenience or whether the use of Mohamed’s truck for these purposes was a reasonable alternative to the impounded vehicle.
24The appellant testified that Mohamed’s wife regularly delivered food to the Mosque for donation to those in need in the community and that she stopped doing this when the vehicle was impounded. However, the appellant presented no information about whether others participating in the donation program could assist her with transportation, whether she could manage by the use of taxi or ride-sharing services on those occasions, or whether Mohamed’s truck was available for that purpose.
25Although I am prepared to accept that the loss of the use of the impounded vehicle would be inconvenient for Mohamed and his wife, that is not a ground that can be considered by the Tribunal.
26On questioning by the Tribunal regarding whether Mohamed and his wife have actually found any alternatives to the impounded vehicle, the appellant testified that, because of the disruption to Mohamed’s family that the impoundment has caused, about 15 days before the hearing Mohamed’s wife decided to travel with their son to Jordan, where they will stay with their extended family until school starts in the fall.
27The fact that Mohamed and his family have no need of the impounded vehicle for the duration of the impoundment period, and that they have decided not to return to Canada even when the impoundment period is over, amounts to a reasonable alternative in mitigating or eliminating the losses occasioned by the impoundment for the purposes of s. 10(1) of the Regulation.
28I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.
ORDER
29For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
_________________________
Colin Osterberg, Member
RELEASED: August 04, 2021