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 the Act

Between:

Muhammad Saeed

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jan Dymond, Vice-Chair

APPEARANCES:

For the Appellant: Muhammad Saeed, Self-Represented

For the Respondent: Leila Pereira, Agent

Heard by teleconference: November 14, 2024

OVERVIEW

1Muhammad Saeed (the “appellant”) appeals the 45-day impoundment of his 2023 Honda CRV under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on October 20, 2024. At the time of the impoundment, the applicant’s son, Shabaz Khan (“the driver”), was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

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

ISSUES TO BE DETERMINED

3Section 50.2 of the Act provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section limits the grounds upon which the Tribunal can order the release of the vehicle. The appellant’s appeal is based on whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.

RESULT

4For the reasons that follow, I find that the appellant has demonstrated on a balance of probabilities that the impoundment will result in exceptional hardship.

ANALYSIS

Has the appellant established that the impoundment will result in exceptional hardship?

5I find that the appellant has established exceptional hardship under the Act and the impounded vehicle is to be released.

6The burden is on the appellant to prove that, on a balance of probabilities, the impoundment will result in exceptional hardship as defined in the Act and regulations.

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.

8Section 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:

“…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.”

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 be dismissed.

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), 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.

11The appellant’s submission for exceptional hardship focuses on his dependence on the vehicle to commute between his home in Kitchener and his employment in Mississauga and the lack of available alternatives. He submits that he fears the impact the impoundment is having on his ability to get to work on time may lead him to lose his job.

12The appellant testifies that he is employed as a full-time hourly warehouse employee. His scheduled hours of employment are Monday to Friday from 9:00 a.m. to 5:00 p.m. He testifies that his normal commuting time by car is one hour and fifteen minutes to work and one hour and thirty minutes at the end of the day.

13The appellant acknowledges that, since the impoundment, he has used alternative means of travelling to work, including public transit, securing a ride from a friend, and Uber (once). He submits that he has missed five days of work and been late for work on multiple occasions. He testifies that he must take the missed days as unpaid leave because does not have any vacation days available resulting in lost income. He testifies that the warehouse closes at 5:00 p.m.; therefore, he is unable to adjust his hours or work overtime to make up for the lost time. He further submits that his employer is not happy with his lateness/absences and has told him that he needs to solve the problem. He testifies that he fears he may lose his job.

14The appellant submits that public transportation adds as much as two hours each way to his commuting time for a total of three to three and half hours each way, and that he is concerned that the added stress may negatively impact his health. In his notice of appeal, he indicated that the cost of public transit is $40.00 each way and the one-way cost of an Uber is $122.00, which is not affordable. He testifies that there are no other vehicles in the household nor vehicles available to him through other family members or friends. He further submits that he cannot afford to rent a vehicle.

15He testifies that his youngest son has been able to use public transit to go to school and that his wife has been able to reschedule a medical appointment she was unable to attend because the vehicle was not available.

16The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle, and that the vehicle was stopped while being driven by the driver while his licence was under suspension due to a criminal conviction. I am satisfied, therefore, that the vehicle was validly impounded.

17The respondent submits that before hardship can be considered, the appellant must meet his onus to show that no alternative exists to the impounded motor vehicle.

18The respondent acknowledges that the impoundment has made the appellant’s travel for work difficult and inconvenient but submits that the appellant has been able to attend work and meet the needs of his family through other means of transport since the impoundment.

19The Act permits impacts of an impoundment such as economic loss/financial hardship to be considered only under limited circumstances and only if there is first a finding that no alternative vehicle is available.

20I have considered the submissions of both parties and find that the appellant has met his onus to show that he has no alternative vehicle available. While he has been able to travel to his employment on multiple occasions and has used public transportation and delivery services to obtain necessities such as groceries and pharmacy items, I find that the appellant’s concern that his missed days and lateness could cause him to lose his job is reasonable.

21I note that Reg. 631/98 requires the owner “to demonstrate that every reasonable option has been considered and inquired into.” Considering the lengthy commute time required to use public transportation and potential for late or missed work, I find that public transportation is not a reasonable alternative in the appellant’s circumstances. I further find taxis/ride-shares to be cost-prohibitive alternatives for travel to work in this appellant’s circumstances and, therefore, not reasonable options.

22I therefore conclude that there is no alternative to the impounded vehicle. In doing so I have not considered inconvenience to the appellant, or financial or economic loss. However, when a potential alternative is entirely cost-prohibitive or not fit for purpose, it is in my view not a reasonable option.

23I have concluded that no alternative to the impounded vehicle is available; therefore, I may consider whether the impoundment will result in exceptional hardship. In doing so, I may also consider whether the impoundment will result in loss of employment, if the loss will be immediate, significant, and lasting.

CONCLUSION

24I conclude that there is a real possibility of the appellant being at risk of losing his job because of his multiple instances of missed work hours/days caused by the impoundment and lack of reasonable alternative transportation options. I also conclude that such a loss will be immediate, significant, and lasting. On that basis, I find that the impoundment will result in exceptional hardship as defined in the Act and the Regulation.

ORDER

25On the basis of the evidence presented at the hearing and the reasons set out above, I order the release of the appellant’s vehicle pursuant to subsection 50.2(5) of the Act.

Jan Dymond

Vice-Chair