Date: 2023-03-08

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1 of that Act

Between:

Madiha Bhatti

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Madiha Bhatti, self-represented

For the Respondent: Leila Pereira, agent

Heard by teleconference: March 3, 2023

1Madiha Bhatti (the “appellant”) appeals the 45-day impoundment of her 2017 Mercedes GLS 450 under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on January 28, 2023. The vehicle was being driven by her husband, Conan Hamdani, a driver with a suspended driver’s licence.

2The Appellant’s ground of appeal is that the impoundment will result in exceptional hardship. The onus is on the appellant to prove her grounds for appeal on a balance of probabilities.

ISSUES

3In accordance with the Case Conference Report and Order, the issues to be determined are:

i. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

4For the reasons that follow, the impoundment is confirmed.

EVIDENCE AND ANALYSIS

Issue – Will the impoundment of the vehicle result in exceptional hardship?

5I find that appellant has failed to establish on a balance of probabilities that the impoundment will result in exceptional hardship.

Testimony of the appellant

6The Appellant testified that she is currently employed with the Dufferin-Peel School Board in a casual position as a secretary. As such, she is provided assignments at different locations within Dufferin and Peel which she has the option of accepting or declining. While she does have access to Uber to transport her to the assignments, she has decided to decline all assignments since the impoundment of her vehicle as she does not have the finances available to pay for Uber. Although she lives in an area with public transit, that is not feasible as the assignments are in different locations.

7The Appellant testified that she has not advised her employer of the impoundment, and subsequent transportation difficulties, but has merely declined assignments. She testified that she has not received any warnings from her employer regarding the declining of the assignments, but there is a danger that she could be downgraded on the list that the School Board uses to prioritize those whom they choose to allocate assignments.

8The Appellant testified that she, and her husband, who is the only other inhabitant at their home, have accessed Uber for delivery of their essential needs. However, she also testified that she has been ill for some of the duration of the impoundment and has been unable to go to a walk-in clinic or get medication as her funds are ‘running low’.

9The Appellant testified that she feels that her mental health has suffered during the duration of the impoundment due to being confined. She testified that she has unsuccessfully attempted to contact Ontario Health regarding this, but has employed some self-help strategies, such as listening to zen music as well as audiobooks and podcasts dealing with mental health.

Evidence of the respondent

10The agent for the Registrar for the Motor Vehicles (the “Registrar”) referred to the Notice to Registrar, dated January 28, 2023 in which Conan Hamdani is listed as the driver of the vehicle and the appellant as the owner of the vehicle. The Notice to Registrar states the location of the incident as Yates Drive and Holly Avenue in Milton, Ontario.

11The Registrar referred to the Extended Driver’s Record Search for Criminal Code Convictions of the driver, dated February 24, 2023. The Driver’s Record Search lists the driver’s licence status as Suspended, Cancelled, Unlicensed and Unrenewable due to a criminal conviction.

Analysis

12The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), a regulation made under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.

13In order to show that no alternative vehicle is available, s.10(4) of the Regulation requires the owner to demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss. This includes using another vehicle and making arrangements to do without a vehicle.

14Sections 10 (2) and 10 (3) of the Regulation set out factors that may or may not be considered by the Tribunal in certain circumstances. The Tribunal cannot consider “inconvenience to any person” (ss. 10 (2) (a) and (3)).

15With respect to the other factors in s. 10 (2), namely: (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; and (d) loss of education or training or of an educational or training opportunity to any person, the Tribunal may only consider those factors, if there is no alternative to the impounded vehicle available, and that, among other things, the loss will be immediate, significant and lasting.

16It is the Appellant’s evidence that the impoundment of the vehicle is causing financial hardship. It is also the Appellant’s evidence that she does have access to both ride sharing and public transit as alternatives to her impounded vehicle. Unfortunately, according to ss. 10(2) and (3) of the Regulation, the Tribunal is not allowed to consider financial hardship, or other considerations, if there is an alternative to the vehicle, which there is. Given that, I find that the Appellant has not established that the impoundment will result in exceptional hardship, as defined by the Act and the Regulation.

ORDER

17On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.