Licence Appeal Tribunal File Number: 15383/MVIA
Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension.
Between:
Azza Ahmed
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION and ORDER
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
L. Pereira, agent for the Registrar
Heard by teleconference:
November 23, 2023
Overview
1On November 4, 2023, the appellant’s vehicle was detained and impounded for 45 days, pursuant to s.55.1(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”) after being driven by the appellant’s brother while his licence was suspended for a Criminal Code related reason. The impoundment period ends on December 19, 2023.
2The appellant appeals the impoundment on the ground the impoundment will cause exceptional hardship.
Issue
3The issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3) of the Act.
Result
4For the reasons outlined below, the appeal is dismissed and the impoundment of the vehicle is confirmed.
Analysis
The appellant has not established exceptional hardship under the Act
5I find the appellant has not proven there are no alternatives available to the impounded vehicle and, as a result, her appeal under s. 50.2(3) of the Act must fail.
6Section 50.2 of the Act allows only a few limited grounds on which an owner may appeal, one of which is exceptional hardship. The onus is on the appellant to establish one or more of those grounds.
7Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the requirements that must be met to show the impoundment will result in exceptional hardship.
8Pursuant to s. 10(1) of the Regulation, the first part of the test requires me to consider whether “no alternative to the impounded motor vehicle is available”.
9Section 10(4) sets out what an appellant must show to meet this initial prong of the test:
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 owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3) must fail.
11Only where the appellant has established there is no alternative available am I able to consider whether, pursuant to s. 10(1) of the Regulation, the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
12Additionally, the Regulation stipulates that unless the appellant demonstrates there is no alternative to the impounded vehicle, the Tribunal is prohibited from considering financial loss in determining whether an impoundment will result in exceptional hardship. Further, I may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
13The respondent presented uncontested documentary evidence which established that:
a) the appellant is the registered owner of the impounded vehicle;
b) on November 4, 2023, the vehicle was stopped while being driven by a person whose licence was suspended due to a previous Criminal Code conviction;
c) the vehicle was impounded pursuant to s. 55.1 of the Act; and
d) the vehicle is eligible for release on December 19, 2023.
14The appellant testified the vehicle was taken without her knowledge by her brother who planned to repair it for her as a birthday present. Her brother’s licence is suspended for life due to past Criminal Code convictions for impaired driving and driving while prohibited.
15The appellant had not driven the car for approximately five days before the impoundment due to a problem with the brakes and the steering. For some time prior to that she had not been driving it for long distances due to its state of disrepair.
16The appellant lives with her elderly parents; her mother suffers from dementia and her father has mobility issues and other medical issues.
17Her father needs to attend for at least one medical appointment during the period of impoundment and, while costly, taxis and/or Uber are available for this purpose. Her mother also has an upcoming medical appointment and can use public transportation to attend the appointment.
18Although the appellant spends part of the week working from her home in Scarborough, she is sometimes required to attend at the office in Mississauga. She can travel to her workplace via public transport and indeed has done so at least once since the impoundment.
19The appellant’s brother and sister-in-law live a five-minute drive away and although they have their own family issues to deal with, the sister-in-law has been able to provide the appellant with transportation during the impoundment. Her sister-in-law had driven the appellant to get groceries.
20The appellant has also reached out to friends for assistance with her transportation needs.
21While it was clear during the hearing the impoundment and the circumstances surrounding the impoundment have caused the appellant considerable personal inconvenience, I find these circumstances do not rise to the point where I can conclude there is no alternative to the impounded vehicle.
22As the appellant has failed to show there was no alternative to the impounded vehicle, I need not consider the remaining components of the exceptional hardship test.
23I find the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground.
Order
24For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
___________________________
Katherine Livingstone, Member
Released: December,4 2023