Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 16613/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:

Gill International Realty Inc. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Vice-Chair: Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: Faqir Gill and Samson Gill For the Respondent: Sadia Ashraf, Representative

Heard: January 16, 2025

OVERVIEW

1Gill International Realty Inc., the appellant, appeals from the impoundment of its 2015 Mercedes, the vehicle, on December 22, 2024 for 45 days. At the time it was stopped and impounded, the vehicle was being driven by Samson Sameer Gill ("Samson") who did not have a valid driver's licence.

2As set out in the Notice of Appeal and confirmed at the hearing by Samson, the appellant appeals on the sole ground that the impoundment will result in exceptional hardship because it needs the vehicle to transport Faqir Gill ("Faqir") to his medical appointments and the impoundment will result in a threat to the health and safety of Faqir because he is a person ordinarily transported by the vehicle within the meaning of s. 10.1(a) of O. Reg. 631/98.

ISSUES

3The issue in dispute is:

Issue 1: Whether the impoundment will result in exceptional hardship.

RESULT

4I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the "HTA") may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Issue 1: Will the impoundment result in exceptional hardship?

7I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

8Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. 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 appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

10Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

11Samson, Faqir's son, testified that the vehicle is used to take Faqir to his medical appointments, including his ongoing treatment with Dr. Iqbal who sees Faqir at a hospital in another municipality some 85 kilometers away from where Faqir lives. Samson filed letters with the Tribunal which confirm that Faqir has a medical condition that requires ongoing treatment from Dr. Iqbal. Samson testified that the loss of use of the vehicle to the appellant is a threat to the health and safety of Faqir within the meaning of s. 10(1)(a) of the Regulation.

12Samson also testified that it would be financial strain if Faqir had to pay for Uber to attend his medical appointments because Faqir is a pensioner and Uber is his only alternative transportation to attend medical appointments.

13Samson also testified about why he was driving the vehicle on the day of the impoundment, testified that he no longer uses alcohol, is taking steps to have his driver's licence re-instated, and submitted an affidavit of his cousin Robert Gill describing why Samson was driving the vehicle on the day of the impoundment. None of this information is helpful on the issue of whether the impoundment will result in exceptional hardship to the appellant.

14Samson testified that he lives with his mother and his father Faqir. Samson confirmed that his mother drives a Lexus vehicle which he believes is also registered in the name of the appellant. Samson testified that Faqir has to "wedge" himself into the Lexus because he is a tall man but can do so when there is no other alternative.

15Although Samson initially testified that he did not know his driver's licence was suspended on the day of the impoundment, in cross-examination he admitted that he has been stopped before by the police for driving the vehicle without a valid driver's licence, and also for driving the Lexus his mother drives.

16Faqir testified that he has a medical condition that requires frequent blood work and periodic visits to Dr. Iqbal who he sees at a hospital in another municipality. Faqir testified that since the date of the impoundment, he has not missed any medical appointments.

17Faqir testified that the appellant owns another vehicle, the Lexus driven by his wife. Faqir testified that both he and his wife are insured drivers on both the impounded vehicle and the appellant's Lexus. Faqir said that his wife can drive both of the appellant's vehicles but usually drives the Lexus because it is a smaller motor vehicle. Faqir testified that he can fit into the Lexus although it is not easy for him because he is tall and he prefers to drive the impounded vehicle.

18Faqir also testified that his friend and business partner has picked him up and driven him to medical and business appointments since the vehicle has been impounded. Faqir's next medical appointment is January 17, 2025 and he testified that he has confirmed that his friend will pick him up and take him to this next appointment. Faqir also said that he can call on another retired family member to take him to medical appointments if necessary. Faqir testified that there is no need to consider renting another vehicle during the impoundment period or to use uber, because he doesn't need to do so and has been able to attend all his medical appointments.

19The Registrar filed documents establishing that the appellant is the registered owner of the vehicle and also a 2013 Lexus.

20The Registrar also filed documents establishing that the vehicle was previously impounded in 2019 when it was being driven by Samson without a valid driver's licence.

21The Registrar's documents confirm that Samson did not have a valid driver's licence on December 22, 2024 when the vehicle was impounded again.

22It is clear from the testimony of both Faqir and Samson that the loss of the vehicle during the impoundment period is inconvenient for the appellant.

23Inconvenience is not a factor which the Tribunal can take into consideration.

24I may only consider whether the impoundment will result in a threat to the health and safety of Faqir if there is no alternative to the impounded motor vehicle.

25I find that the appellant has alternatives to the impounded vehicle available to it during the impoundment period, including, the use of the appellant's second vehicle, the 2013 Lexus, transportation provided by a friend and family members who can take Faqir to his medical appointments and, if it becomes necessary, publicly available transportation such as uber.

26Contrary to the submissions of Samson at the hearing, the wording of s. 10(1) is clear that I shall consider the circumstances set out in s. 10(1) (a) only "...if no alternative is available...". Here, I have found that alternatives to the impounded vehicle are available as set out above.

27Given that the appellant has alternatives to the vehicle, I cannot consider whether the impoundment will result in a threat to the health and safety of Faqir under s. 10.1(a) of the Regulation.

Conclusion

28As a result, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

29Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.

LICENCE APPEAL TRIBUNAL

Avril A. Farlam, Vice-Chair