Kebret Mengistu v. Registrar of Motor Vehicles, 2023 CanLII 4438

Licence Appeal Tribunal

Date: 2023-01-26

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:

Kebret Mengistu Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Kevin Lundy, Member

Appearances:

For the Appellant: Kebret Mengistu, Self-represented For the Respondent: Leila Pereira, Agent Ian Sookram (Observer)

Heard by Teleconference: January 23, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Kebret Mengistu (the ‘appellant’) appeals the impoundment of her 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 December 13, 2022. At the time of the impoundment, the respondent alleged that the driver, Perry Cohen (‘P.C.’), was driving with a suspended licence. The appellant is the registered owner of the impounded vehicle, a 2018 Nissan Qashqai. A Notice of Impoundment was issued for a period of 45 days. The vehicle is scheduled to be released from impoundment on January 27, 2023.

ISSUES TO BE DETERMINED

2Subsection 50.2(3) of the Act sets out the available grounds on which the Tribunal may release the vehicle. As detailed below, I found that the following grounds of appeal are relevant to this hearing:

(b) 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

(d) that the impoundment will result in exceptional hardship.

3According to the case conference order and report, issued on January 12, 2023, the parties agreed that the only issue to be determined is whether the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

4However, in her Notice of Appeal (‘NOA’) that was filed before the case conference order and report was issued, the appellant raised an addition ground of appeal. Specifically, she stated that she had lent her vehicle to her stepsister, Ayan Hassan (‘A.H.’), and that it was A.H. not P.C. who was operating the vehicle on December 13, 2022. When the appellant raised this issue again at the hearing, rather than object, the respondent instead challenged the credibility and reliability of the appellant’s evidence through cross-examination.

5As the appellant described this issue at length in the NOA, I find that the respondent received reasonable notice that the appellant could reasonably raise it again at the hearing, despite the restrictive wording of the case conference order and report. As well, subsection 15(1) the Statutory Powers Procedure Act, (the ‘SPPA’) permits the Tribunal to admit and consider any evidence, document or other thing that is relevant to the subject-matter of the proceeding. As evidence of who was driving the motor vehicle at the time it was detained is relevant to the appeal and falls under a lawful ground of appeal under subsection 50.2(3)(b) of the Act, I admitted and considered this evidence at the hearing and considered the two grounds of appeal.

RESULT

6For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.

EVIDENCE AND ANALYSIS

Driver’s Licence not under Suspension

7As the appellant and her stepsister were both aware that P.C.’s driver’s licence was under suspension, the appellant lent her car to A.H. on the condition that P.C. would not operate it. There was no evidence that A.H.’s licence was under suspension at the time of the impoundment. The appellant testified that A.H. informed her that while she was attending at a post office, P.C. returned to the vehicle to retrieve cigarettes. On his way to the vehicle, he was detained and arrested by police officers on unrelated charges. Noting that P.C.’s licence was suspended, the officers ordered the vehicle impounded. According to A.H., who may or may not have witnessed the arrest, P.C. had not yet arrived at the vehicle when he was stopped.

8Both A.H. and P.C. assured the appellant that only A.H. had operated the vehicle. Neither the appellant nor the respondent’s agent submitted direct evidence with respect to whether P.C. operated the vehicle at the time it was detained and impounded and neither called any witnesses, such as A.H., P.C. or the police officers involved in the detention. As a result, both relied upon hearsay evidence with respect to the issue of P.C.’s actions on that date. However, as the appellant bears the evidentiary burden in the appeal and the evidence of the respondent is at least as persuasive as that submitted by the applicant, I find that she has failed to demonstrate on the balance of probabilities that only A.H. operated her vehicle on December 13, 2022.

Exceptional Hardship

9Section 10 of O. Reg. 631/98 under the Act (the ‘Regulation’) sets out the criteria and factors that the Licence Appeal Tribunal (the ‘Tribunal’) must consider in determining whether exceptional hardship will result from an impoundment.

10Subsection 10(1) of the Regulation requires the Tribunal to consider first 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.

11If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under subsection 50.2(3)(d) of the Act will fail.

12If the owner proves that there is no alternative to the impounded vehicle available, then subsection 10(1) of the Regulation requires the Tribunal to consider whether 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 community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant demonstrates that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

13In the present case, the appellant resides in Etobicoke and commutes two hours to her place of work in Mississauga. Following the impoundment, she was compelled to rely upon a combination of taxis, ride sharing services and public transit to get to work. This resulted in several late attendances and absences that cost her a promotion, as confirmed by a letter from her manager. She explained that she missed two days of work December 14 and 15, 2022 and elected to take two days off during the following week to avoid further late arrivals. Similarly, she chose to take off the full week of January 9, 2023 as personal days to avoid attending late. Between sick days and personal days, she was able to limit her lost pay to two days.

14When asked why she could not leave earlier to ensure prompt arrivals at work, she stated that public transit was not available earlier to allow her to arrive on time but did not elaborate whether this is a scheduling limitation or otherwise. She also acknowledged that although taxis and ride sharing are available, use of these services would be expensive for more that a few days per week. She did not suggest that the cost would be prohibitive until she can retrieve her car from the impound facility. She has also been able to purchase groceries and other essentials online and her sister has assumed the responsibility of attending to their mother’s errands and appointments.

15Ultimately, I find that the appellant has not demonstrated that there were no alternatives to the impounded vehicle available and her appeal under subsection 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.

ORDER

16For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.