Aynur Nahar v. Registrar of Motor Vehicles, 2024 CanLII 18087

Licence Appeal Tribunal File Number: 15634/MVIA

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 that Act

Between:

Aynur Nahar

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION

Vice-Chair: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Aynur Nahar, Self-represented Master Bari, son, assisting with interpreting - Bengali language

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: March 4, 2024

OVERVIEW

1Aynur Nahar (the “appellant”) appeals the 45-day impoundment of her 2019 Toyota C-HR (the “vehicle”) on February 6, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by Master Bari (the “driver”) on whose licence was a condition imposed for a prescribed reason that he not drive a vehicle that does not have an interlock ignition device.

2The appellant appealed the impoundment to the Tribunal on February 7, 2024.

3The ground of appeal raised by the appellant is that the impoundment will result in exceptional hardship.

ISSUES

4The issues to be determined are:

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

RESULT

5I conclude that the impoundment will not result in “exceptional hardship”, and I confirm the Registrar’s decision to impound the vehicle.

ANALYSIS

6Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle available, with s. 10(4) of the Regulation requiring the owner to show that every reasonable option has been considered and inquired into to eliminate or adequately reduce any threat or loss to the person, including using another vehicle and making arrangements to do without any vehicle during the impound period. If I find that there is an alternative to the impounded vehicle available, then the appeal will fail and I need not consider any other requirements of the test for exceptional hardship.

7If it is found there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle. At that point I may consider whether there would be an immediate, significant and long-lasting financial or economic loss to any person ordinarily transported by the vehicle, other than the person whose driving resulted in the impoundment.

8The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped by police while being driven by the appellant’s son, whose licence required, for a prescribed reason, the installation of an interlock ignition device in any motor vehicle that he drives. The impounded vehicle was not so equipped. I am therefore satisfied that the vehicle was validly impounded.

9The appellant submits that the impoundment will result in exceptional hardship as she has no reasonable alternative to the vehicle.

10The respondent submits that the appellant does have access to reasonable alternatives to the vehicle, and therefore does not meet the threshold test for exceptional hardship.

11The appellant testified that she lives with her husband, their son, and his wife. Her husband is retired, while her son is working part time and his wife does not work, as she is newly arrived in Canada.

12The appellant testified that she and her husband both have medical issues and require the vehicle in order to attend medical appointments. She testified that her husband is 75 years old and suffers from heart problems, high blood pressure and complications from diabetes. She testified that, since the impoundment, they have had to cancel two medical appointments for her husband. At one point, it was necessary to take an Uber to and from the hospital as her husband was experiencing higher than usual blood pressure.

13The appellant testified that she also suffers from diabetes as well as high blood pressure and high blood sugar. Her testimony is that she has not missed any medical appointments since the impoundment.

14The appellant testified that she is employed in downtown Toronto as a secretary for an insurance company. She testified that it takes over an hour to get to and from work via public transit. She testified that, since the impoundment, she has missed 3 or 4 days of work, as it was too cold and/or difficult to take transit. She testified that she is not in jeopardy of losing her employment due to the transportation difficulties, as her employer is understanding of the situation.

15With respect to obtaining any required groceries and other necessities, her son obtains those by taking public transit.

16The appellant testified that the family is on a fixed income, although she likely meant that they have a set amount of household income since both she and her son are employed. She testified that rental cars and ride sharing are too expensive.

17The appellant testified that, in an emergency, they have access to 911.

18The respondent submits that there are reasonable alternatives to the impounded vehicle, namely public transit, ride-sharing services such as Uber, and emergency access. The respondent submits that the appellant has not missed medical appointments and has been able to reschedule those of her husband. The respondent also submits that the appellant has been able to get to and from work via public transit, and the appellant’s son is able to obtain groceries and necessities, also via public transit.

19I agree with the respondent. I find that there are reasonable alternatives to the impounded vehicle. Public transit and ride-sharing are readily accessible, although not always convenient or inexpensive. Emergency services are available when required.

CONCLUSION

20As I conclude that the appellant has reasonable alternatives to the vehicle, I find that the impoundment of the vehicle will not result in exceptional hardship as defined in the Act and the Regulation.

I ORDER AS FOLLOWS:

21For the reasons set out above, and pursuant to subsection 50.2(5) of the Act, the Tribunal confirms the impoundment of the appellant’s vehicle.