Licence Appeal Tribunal File Number: 14881/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act R.S.O. 1990, C. H.8, as amended.

Between:

Ummara Choudhry

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Ummara Choudhry, Self-Represented

For the Respondent:

Leila Pereira, Representative

HEARD: May 23, 2023

OVERVIEW

1Ummara Choudhry, the appellant, appeals from the 45-day impoundment of her 2014 Nissan Rogue 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 May 3, 2023. At the time of the impoundment, her partner Ammar Wahid was driving the vehicle while subject to a suspension for a Criminal Code conviction.

2The appellant appeals on the grounds that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

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

RESULT

4I find the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The Registrar presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2014 Nissan Rogue (the “vehicle”);

ii. on May 3, 2023, the police discovered the impounded vehicle being driven by Ammar Wahid (the “driver”); and

iii. Mr. Wahid’s was not licenced, was never issued a licenced, and was subject to a suspension for a Criminal Code conviction at the time of the impoundment.

Whether the impoundment will result in exceptional hardship

6The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship. As noted above, I find that the appellant has not met her burden.

7Section 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.

8Subsection 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.

9If 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 fail.

10If the owner proves that there is no alternative to the impounded vehicle available, then s. 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. In addition, in accordance with s. 10(3) of the Regulation, if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11The appellant testified that she requires her vehicle for work, to take her youngest son to daycare, to attend her college, and for grocery shopping and other errands.

12The appellant testified that, since the impoundment, her three older children, ages 4, 6 and 9 years have been walking to school as their school is walking distance from their home. She testified that she has been unable to take her son to his Tae Kwon Do classes.

13The appellant testified that she is studying spa aesthetics which is a 10 month course ending on June 28, 2023. Since the impoundment, she has been attending Oxford College in Scarborough via public transportation and her courses run from 9 a.m. to 1 p.m. daily. She lives in Stouffville. She testified that she has been dropping her youngest son off at his daycare in Markham on the way to college. She testified that it is difficult for her to travel with her youngest son on the bus and it takes about 35 to 40 minutes to take him to his daycare, and then she takes two additional buses to get to college. She testified that using public transportation to attend college and take her son to daycare has been difficult, time-consuming and inconvenent.

14The appellant testified that, since April 7, 2023, her schooling had become part-time so she had been working as an Uber Eats driver. She did not provide any testimony as to how many hours a week she had been working or how much income she was making. She further testified that she works every Saturday at Shopper’s Drug Mart and she has been walking to her employment which takes her 45 minutes to 1 hour each way.

15The appellant further testified that she has been going to the grocery store by walking and by using public transportation which takes about 35 minutes. On the way back home with her groceries, she has been taking public transportation if there is not a lot to carry home. However, when she purchases a 15 litre bottle of water, she takes an Uber on the way home. She has taken an Uber on three occasions to bring groceries home. She is also able to walk to the grocery store for smaller grocery items.

16The Registrar takes the position that alternative means of transportation are available to the appellant as she has walked, used public transportation and Ubers and has not missed any work or school as a result of the impoundment.

17I note that the appellant has taken public transportation to attend her college, to take her youngest child to and from his daycare and to shop for groceries. She has also taken Ubers to bring her groceries home on no less than three occasions. In this case, the appellant established that she has access to other forms of transportation, including public transportation and the use of ride sharing service, such as Uber. While use of public transportation and Uber may not be convenient or cost effective, nonetheless, I find that the appellant has used such alternative means of transportation to complete her daily tasks.

18I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her 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.

19There is no doubt that the impoundment has resulted in inconvenience and unneeded expense for the appellant, however, she has failed to prove exceptional hardship under the Act and her appeal must fail.

ORDER

20On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.