Tribunal File Number: 13870/MVIA
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:
Wajiha Ahmad
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Wajiha Ahmad, Self-represented
For the Respondent: Stella Velocci, Agent
Heard by teleconference: March 21, 2022
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on March 21, 2022 to consider the appellant’s appeal of the impoundment of her 2019 Honda (the “vehicle”) on February 4, 2022 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s sister was found to be driving it in contravention of a condition that prohibits her from driving a motor vehicle that is not equipped with an ignition interlock device.
2The appellant submits that the impoundment has resulted in exceptional hardship to her because she needs her vehicle to commute to her office in another municipality a couple of times a month, and her younger sister (“sister S”) needs to use the vehicle to commute to her school approximately 123 kilometers away from her home every day and another sister (“sister A”) needs the vehicle so that another family member can drive her to job interviews in another municipality. The appellant also states that payment of the impoundment fees will cause exceptional hardship on the appellant and her low income household.
B. ISSUE:
3The issue to be determined is whether the impoundment has resulted in exceptional hardship.
C. CONCLUSION:
4I find that the appellant’s evidence fails to support a finding that the impoundment has resulted in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.
Will the impoundment result in exceptional hardship?
7I find that the impoundment did not result in exceptional hardship because the appellant had alternatives available to the impounded vehicle.
8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
…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.
9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must 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.
10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The appellant testified that her employer’s office is in another municipality quite far from her home and she mostly works remotely but she needs her vehicle to commute to her employer’s office a couple of times a month for meetings. Since the impoundment, the appellant has missed some meetings with her employer and has had to seek special permission to attend meetings remotely. The appellant admitted in cross-examination that during the impoundment period her employer has been co-operating with her and allowing her to work at home and attend meetings remotely and although this is awkward, she has been able to manage so far.
13The appellant testified that sister A, the driver of the vehicle when it was impounded, needs the vehicle so that another family member can drive her to job interviews in another municipality. The appellant testified that sister A had a couple of job interviews but because the vehicle had been impounded, she had to miss one of the interviews although she was able to make arrangements to attend the other one. A job interview confirmation for sister A was filed and sister A corroborated this in her testimony.
14Both the appellant and sister A testified that their sister S needs to use the vehicle to commute to her school approximately 123 kilometers away from her home every day. The appellant filed sister S’s school schedule and her graduation photograph as evidence at the hearing. Because sister S is required to attend her school in person, she has missed many classes and has been under added stress because the vehicle is not available for her to use to attend school. Although the appellant’s mother has another vehicle available to her, sister A testified that this vehicle has a manual transmission, is “falling apart”, is not fit for long distance driving and no one else in the household knows how to operate the mother’s vehicle except the mother. Sister A testified that their mother works nine to five each day and there is no public transportation in the municipality in which they live that sister S can use to get to her school.
15In cross-examination sister A admitted that the mother has driven sister S to school on occasion before going to work at her own employment but that this has been very difficult for their mother. Sister A testified that her mother works from home at the moment but usually works in another municipality. Sister A also admitted that sister S was able to obtain a ride with others to her school through a ride-sharing program.
16Sister A indicated that sister S was unable to attend the hearing because she had a final project presentation for school due at the time of the hearing.
17Sister A’s partner testified that on the day the vehicle was impounded, sister A had to drive him to the hospital because he was very ill and sister A was worried about him. In cross-examination he testified that 911 emergency services are available in the municipality where he, sister A, sister S, their mother and the appellant all live. The appellant filed a medical note confirming the partner’s illness.
18It is apparent from the appellant’s evidence and that of sister A, that the impoundment period is inconvenient for not only the appellant but also her sisters S and A. However, inconvenience is not a factor which the Tribunal can take into consideration.
19I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.
20I find that the appellant, and even her sisters S and A had alternatives to the impounded vehicle available during the impoundment period which ended on the day of the hearing.
21The appellant primarily works remotely and her employer has accommodated her by allowing her to attend meetings remotely during the impoundment period.
22Although sister A missed one job interview, she was able to obtain necessary transportation to attend the other job interview.
23Although sister S has had to miss some school, the evidence establishes that she was able to obtain a ride to school on some occasions from her mother and through a ride-sharing program. There was no evidence put forward by the appellant indicating that sister S has been unable to continue at her school or is in jeopardy of not graduating. To the contrary, sister S’s graduation photograph was filed at the hearing, tending to indicate that her graduation is likely to take place. Sister S could not attend the hearing because of a commitment with her school.
24As a result, I find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
25Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Avril A. Farlam, Vice-Chair
Released: April 1, 2022