Licence Appeal Tribunal File Number: 15106/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Noah Maliko

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Noah Maliko

For the Respondent:

Andrew Sookhoo, Representative

HEARD: August 16, 2023

OVERVIEW

1The appellant, Noah Maliko, appeals from the 45-day impoundment of a 2015 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 July 15, 2023. At the time of the impoundment, the appellant was driving the vehicle while his licence was suspended.

2The appellant appeals on the grounds that the impoundment will cause 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 that 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 respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2015 Nissan Rogue (the “vehicle”);

ii. on July 15, 2023, the police discovered the impounded vehicle being driven by the appellant; and

iii. the appellant’s driver’s licence was under suspension for a Criminal Code conviction at the time it was impounded.

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 it is defined in the Act and regulations. I find that the appellant has not met his 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. According to 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. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

11I find the appellant has alternative means of transportation available to him. The appellant testified that since the impoundment, he has been using public transportation and walking. He has used public transportation to travel to his place of employment, and to get to the hospital when he experienced a medical emergency. He has also used public transportation for grocery shopping.

12The appellant testified that, prior to the impoundment, his friend would drive him to work and back using the vehicle. His friend undertook this responsibility as the appellant let him use the vehicle for his own personal use. The appellant testified that he needs the vehicle so that his friend can continue to drive him to and from work.

13The appellant testified that while he has been using public transportation, it is not his preference. He finds it difficult to take public transportation given that it takes longer to get to work and given his medical condition. He testified that his medical condition can cause him to lose his breath when he is walking. He testified that he needs to walk to the bus terminal to take a bus and that walking in the heat aggravates his medical condition and has even caused nose bleeds. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

14I find the evidence before the Tribunal establishes that there is an alternative means of transportation available to the appellant. I find that the evidence establishes that, since the impoundment, the appellant has repeatedly used public transportation to complete his essential tasks. While using public transportation may not be convenient, nonetheless, I find this alternative form of transportation have been used.

15Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the 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.

16Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

17On 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.

Released: August 23, 2023

__________________________

Rupinder Hans

Adjudicator