Nadia Khan v. Registrar of Motor Vehicles, 2024 CanLII 43431

Licence Appeal Tribunal File Number: 15758/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:

Nadia Khan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Nadia Khan

For the Respondent:

Sadia Ashraf, Agent

Heard:

April 16, 2024

OVERVIEW

1The appellant, Nadia Khan, appeals the 45-day impoundment of her 2018 Dodge Journey under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

2The appellant's vehicle was impounded on March 21, 2024, after police found it being operated by her former partner V.H. He has an ignition interlock condition on his driver's licence because of an impaired driving conviction from June 13, 2016. The appellant's vehicle is not equipped with such a device.

3Subsection 55.1(2) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the vehicle is being driven in contravention of a condition, imposed for certain reasons on the driver's licence under a conduct review program, that prohibits the driver from driving a vehicle not equipped with an ignition interlock device.

ISSUE

4The appellant appeals the impoundment pursuant to s. 50.2(3)(a) on the grounds that the motor vehicle was stolen at the time it was detained in order to be impounded.

5The appellant also appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on section 50.2(3)(d) of the Act.

6The onus of proving these grounds of appeal rests with the appellant. To succeed in her appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.

RESULT

7Having considered the parties' evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship, as the appellant has reasonable alternatives to the impounded vehicle. I also find that the appellant has failed to demonstrate on a balance of probabilities that the vehicle was stolen at the time it was detained in order to be impounded.

ANALYSIS

Was the vehicle stolen at the time of the impound?

8The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) ("Marshall") held that a vehicle is "stolen" under the Act when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, either permanently or temporarily.

9It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that V.H. was driving at the time it was impounded.

10The appellant states that V.H. is her ex-partner and father of their two children aged 11 and 8. On the day of the impoundment, the appellant testified that she was bedridden due to illness and V.H. attended her residence for the purpose of transporting their children to school because she was unable to do so. V.H. was to transport the children by taxi and arrangements were made by the appellant to do so. To facilitate this, the appellant also arranged for a taxi to bring V.H. to her home since she knew he was not allowed to drive without an ignition interlock device. This information was corroborated by V.H. who attended as a witness in support of the appellant's testimony.

11According to the appellant, after V.H. dropped off the children to school via taxi, he returned to her home and took her car keys without her knowledge or permission. She only became aware that her vehicle was being impounded after receiving a call from a Toronto Police Officer.

12Although the appellant states that the vehicle was stolen by V.H., she offered no substantial evidence about the nature of his intentions on whether he was going to return the car. I find that this is an essential and missing element in the appellant's case. As such, there was nothing to convince me that V.H. intended to deprive the appellant the use of her vehicle with the intention of not returning it. This was also not the first time that V.H. took the appellant's car without her consent. The testimony revealed that he took the appellant's vehicle in 2015 and was involved in an accident.

13The appellant states that she had previously advised V.H. to not drive her vehicle. However, she took no care to secure her car keys away from V.H. on the day of the impound, despite knowing his inability to drive without an ignition interlock device and his past non-compliance.

14During the hearing, the appellant admitted that she did not exercise due diligence on the day of the impound to prevent V.H. from driving the vehicle. She feels she should not have to hide her keys in her home. I accept the appellant's testimony that she did not expect him to take the vehicle, however, her concern did not rise to a level where she would expect the vehicle would not be returned to her at some point. Although not required, she did not formally request that V.H. be charged by police nor is there any indication that police regarded the incident as a theft.

15I find that the appellant has failed to convince me on a balance of probabilities that the vehicle was stolen at the time of the impound.

Has the appellant experienced exceptional hardship as a result of the impoundment?

16I also find that the appellant has failed to show that the impoundment will cause exceptional hardship for the reasons which follow.

17As a first step, s. 10(1) of O. Reg. 631/98 ("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.

18Section 10(4) of the Regulation provides that, in order to show that no alternative to the impounded vehicle is available,

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.

19The appellant did not offer any evidence to demonstrate, on a balance of probabilities, that she had no alternative to the impounded motor vehicle. In fact, the appellant testified that she has been using other options, including borrowing a car from her friend from Monday to Friday to attend work and to meet other obligations. On weekends, the appellant has access to public transit, Uber and taxi although she states the latter is cost prohibitive. Nonetheless, she is able to obtain groceries and medication within walking distance of her home. Neither she nor her children have missed any medical appointments. She states she did miss one day of work due to illness. As well, the children have missed some extra-curricular activities but they do not constitute an urgent matter that cannot be rescheduled.

20Moreover, the appellant has been able to meet her obligations in caring for her family while her vehicle was impounded. She has also maintained her employment and has not missed more than one day of work.

21I find that the appellant does have reasonable alternatives. They have allowed her to continue her daily routine with no major disruption. The loss of her vehicle is no doubt inconvenient, but she has considered and indeed taken advantage of opportunities to overcome this temporary loss.

22The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives to the impounded vehicle, then an appeal on the basis of exceptional hardship cannot succeed. For the reasons set out in this decision, I find that the appellant has failed to discharge the threshold burden of establishing on a balance of probabilities that there are no reasonable alternatives to the impounded vehicle. She therefore does not meet the test for exceptional hardship, as set out in the Regulation, based on the alternatives available to her.

ORDER

23For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I confirm the impoundment order.