Licence Appeal Tribunal File Number: 15610/MVIA

In the matter of an 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:

Melissa Somji

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Melissa Somji, Appellant

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

February 9, 2024

OVERVIEW

1Melissa Somji (the “appellant”) appeals the impoundment of her 2017 Hyundai Santa Fe on January 15, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). At the time of the impoundment, her partner was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under s. 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on section 50.2(3)(d), submitting that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

4I have been asked to decide:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ANALYSIS

The impoundment of the vehicle will not result in exceptional hardship.

6Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purpose of s. 50.2(3)(d) of the Act. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

7Subsection 10(4) of the Regulation states that in order to meet the burden to demonstrate there is no alternative to the impounded vehicle, the owner must show that they have considered and inquired into every reasonable option. Such options may include using another vehicle, taking public transit or taxis, and making arrangements to manage without any vehicle during the impound period.

8Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, under s. 10(2)(a), the Tribunal may never consider inconvenience to any person when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle.

9The appellant argues that the impoundment of the vehicle will result in exceptional hardship. In particular, the impoundment has made it difficult for her to get to work, take her child to school and extracurricular activities and to take her grandchild to doctor’s appointments.

10The respondent argues that the appellant does not meet the test for exceptional hardship because she has access to alternative modes of transportation during the impound period. As a result, she does not meet the test for exceptional hardship.

11I find the appellant has not proven that there are no alternatives to the impounded vehicle during the impound period for the following reasons.

12The appellant testified that she needs her vehicle back to attend work because her employment requires her to travel to different job sites which are not accessible by public transit. She submits that her one-year-old grandchild missed an appointment with an allergist as a result of the impoundment. Further, as the sole income provider for her family she cannot afford to pay for a car rental during the impound period.

13During cross-examination, the applicant conceded that she has not missed any time off work during the impound period and has received rides from a co-worker. Her son has not missed any time off from school. In addition, she acknowledged that public transit is available to her, even if it is in her view unreliable, costly and takes too long. Further, she has been able to obtain groceries during the impound period by taking Uber and has gotten her prescriptions filled because the pharmacy is close to her work. She also confirmed that public transit could be used to take her grandchild to doctor’s appointment, although for unstated reasons she does not like the idea of her grandchild being on public transit after receiving an allergy shot.

14Although the impoundment of the appellant’s vehicle has caused stress, inconvenience, and has had financial consequences, I find that she has alternatives to the impounded vehicle because she has access to other means of transportation such as public transit and Uber, which she has in fact used since the impoundment. Further, she has not missed any time off work because she has received rides from a co-worker. Finally, while the choices available to her may be inconvenient, these alternative modes of transportation are available to the appellant during the impound period.

15As highlighted above, inconvenience is not a factor that I am permitted by the Regulation to take into consideration when determining whether the exceptional hardship test has been met.

16Since there are alternative means of transportation available to the appellant during the impound period, I cannot consider other factors, such as financial loss.

17I am not satisfied that the appellant has proven, on a balance of probabilities, that she is without alternatives to the impounded vehicle during the impound period.

CONCLUSION

18I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ORDER

19Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.