Licence Appeal Tribunal File Number: 16226/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 under section 55.1 of the Act for driving while suspended.

Between:

Sandeep Kaur Basi

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

Sandeep Kaur Basi, Self-Represented

For the Respondent:

Leila Pereira, Representative

HEARD:

September 18, 2024

OVERVIEW

1Sandeep Kaur Basi (the “appellant”) appeals the impoundment of her 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 August 27, 2024. At the time of the impoundment, Gagandeep Singh Basi, the appellant’s husband, was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act; or

ii. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ANALYSIS

The vehicle was not stolen

5I find that the appellant has not established that the vehicle was stolen at the time it was detained in order to be impounded.

6The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) held that a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, either permanently or temporarily.

7The appellant testified that she is an Uber Eats driver and that she uses the subject vehicle to do that job. Her husband, who is otherwise unemployed, goes with the appellant and helps her make deliveries. She knew that her husband’s licence was suspended in late 2023 as the result of a criminal code offence and says that he always sits in the passenger seat while she drives. The appellant says that she has told her husband “many, many” times that he is not to drive her vehicle because his licence is suspended and that he has never done so in the past.

8On the day of the impoundment, the appellant and her husband were working and the appellant had to go into a mall to a restaurant in order to pick up food for a delivery. She parked the vehicle in a no-parking zone and put its hazard lights on and went into the mall, leaving her husband alone in the vehicle along with the vehicle’s keys. When she returned, the vehicle was gone. She later received a telephone call from the police notifying her that her husband had been arrested and the vehicle impounded. According to the appellant, her husband took the vehicle to a pharmacy in order to obtain medicine for his sick mother. She says he had not mentioned that he needed to do this and she did not give him permission to take the vehicle for this purpose.

9I am not satisfied that the appellant’s husband took the vehicle without the appellant’s permission. I find the appellant’s evidence that she told him “many, many” times he was not allowed to drive the vehicle to be unlikely and I do not believe that evidence. There was no reason offered why her husband would have to be told more than once that he was not allowed to drive while his licence was suspended let alone many, many times.

10Further, the appellant’s evidence is that the husband’s own vehicle had been impounded in February 2024 because he was driving it while his licence was suspended and the appellant should have known that he might be prone to doing that again despite her prohibition. I find that the leaving her husband in the vehicle with the vehicle keys while the vehicle was stopped in a no-parking zone amounts to implied consent for him to drive. In fact, I find that the appellant likely had the expectation that he would drive the vehicle if it had to be moved from the no-parking zone for some reason before she returned.

11Finally, I find it unlikely that the appellant’s husband would have taken the vehicle to go to the pharmacy without telling her as was alleged. The appellant and her husband had been driving around for several hours before the vehicle was impounded and the appellant did not present any reasonable explanation as to why he would not have told her he needed to stop at the pharmacy for his mother’s medicine rather than stealing her vehicle while she was in the mall.

12The evidence presented at the hearing does not satisfy me that the vehicle was stolen on the day it was impounded and the appellant has not proven this ground of appeal.

The appellant has not established exceptional hardship according to the Act

13I also find that the appellant has not established exceptional hardship under the Act and the appeal on that ground must be dismissed as a result.

14Section 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.

15Section 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.

16If 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.

17If 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.

18The appellant says that she uses the impounded vehicle to drive for her work and that the vehicle is required to transport her ill mother-in-law to get medical attention should that be required.

19The evidence establishes that, aside from her use of the vehicle as an Uber Eats driver, the appellant has alternatives to the impounded vehicle available to her.

20With respect to the transportation of her sick mother-in-law, the appellant says she is 75 years old and suffers from asthma and has knee pain such that climbing stairs is difficult. At some time more than a month ago, the mother-in-law had to be taken to the hospital because she was having difficulty breathing, but other than that episode, there have been no instances where the mother-in-law had to be transported for medical attention or appointments. The appellant agrees that ambulance services are available in the case of an emergency and I am not satisfied that this alternative would be inadequate.

21The appellant also testified that she is able to access public transportation, taxis, and ride-sharing services for her household needs and I find that these represent reasonable alternatives to the impounded vehicle for these purposes.

22With respect to the appellant’s employment, I am satisfied that the appellant has no reasonable alternative to the impounded vehicle for this purpose. However, I am not satisfied that the appellant has satisfied the remaining requirements with respect to the exceptional hardship ground of appeal under s. 10 of the Regulation.

23Although the appellant says her Uber Eats job is the only income available in her household, she has presented little evidence that other work is unavailable to her or that the loss of this income will be immediate, significant and lasting as is required in order to establish exceptional hardship under s. 10 of the Regulation. There was no evidence presented that establishes why the appellant and her husband are unable to find other employment to replace the income that was being generated by the Uber Eats job, what the lasting impact of the loss of the vehicle will be or what efforts have been taken to ameliorate that impact.

24Although the appellant made bald statements that she needs the income from the Uber Eats job and that she will be rendered homeless without it, there was no evidence presented in support of those allegations. The onus of proving, on a balance of probabilities, that the impoundment will result in exceptional hardship is on the appellant and she has not established to my satisfaction that the loss caused by the impoundment will be immediate, significant and lasting.

25Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground.

ORDER

26For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.