Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10238/MVIA
CASE NAME: 10238 v. Registrar of Motor Vehicles
Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.
10238 Appellant
- and -
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Gary Yee, Associate Chair Bryant Greenbaum, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
June 15, 2016
REASONS FOR DECISION
Introduction
The Appellant appealed the impoundment of her vehicle which occurred when her boyfriend at the time drove the vehicle while his driver’s licence was under a Criminal Code suspension. The Appellant felt nauseous and fatigued while driving her son back to his father’s house, and so she asked her boyfriend to drive. The possible grounds of appeal put forth by the Appellant are that she had exercised “due diligence” in attempting to check the status of the suspended driver’s licence. Another ground is that the impoundment has caused “exceptional hardship” as defined in the legislation.
The Tribunal found the Appellant to be a credible witness. She is clearly going through a very difficult and stressful time because of this impoundment, and she feels she has been victimized by her now ex-boyfriend. But the Tribunal finds that this unfortunate situation does not meet the tests set out in the legislation. As a result, the vehicle will remain impounded for the required 45 days.
Issue 1
Did the Appellant prove that she had “exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded,” as set out in section 50.2(3)(c) of the Highway Traffic Act?
Facts and Analysis
The impoundment occurred on Monday, May 23, 2016. The Appellant had been at her mother’s camper in northern Ontario for the weekend, with her 16 year-old son and her boyfriend. She was driving her son back to his father, who lived in another town about 2.5 hours away. After dropping off her son, she would then drive back with her boyfriend to her home north of Toronto, which was about 7.5 hours away. On the way to bring her son to his father, she became nauseous and fatigued, and she asked her boyfriend to continue driving, because she wanted to get her son back to his father by 3:30 p.m. Her boyfriend asked if she really wasn’t feeling well enough to drive, and she said she was almost going to pass out and requested again that he drive the car.
While her boyfriend was driving, the Appellant and her son were sleeping in the vehicle. The vehicle was then pulled over by the police, and the impoundment occurred. This was the first time that she was made aware that her boyfriend’s licence was under suspension.
The Appellant said she had presumed her boyfriend was licensed because he had offered to pick her up a few times when they first started dating, which was near the end of September 2015. She also had seen him show his driver’s licence to the security officer at a casino when the two of them were asked to prove their identity and age upon entry. This led her to believe that he was licensed to drive. She acknowledged that, in hindsight, from what she knows now, she could have checked further into his licence.
The Appellant and her boyfriend did not live together. After this impoundment incident, she split up with him.
The Appellant said that she never lets anyone else drive her vehicle, and this was the first time she had done so. She said she has never been pulled over and she has a perfect driving record.
The Tribunal must decide if these circumstances support a finding that the Appellant did enough to check the status of her boyfriend’s driver’s licence before she permitted him to drive her vehicle. The Regulation does not define “due diligence.” The use of the term “due” in “due diligence” supports the view that there is no absolute standard, but that the required actions depend upon the particular circumstances, and an assessment of what a reasonable and cautious person would do under those circumstances. An objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing certain suspended drivers to drive their vehicles. This will help to promote more safety on the roads.
There is a range of actions for a vehicle owner to check the status of another person’s driver’s licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver’s licence, asking to see or examine a person’s driver’s licence, or using the Ministry’s telephone or online checking service and paying $2.50 to verify the status. The level of inquiry and action required will depend on the nature of the relationship between the owner and the borrower or driver, as well as on the particular situation – for example, whether there was an indication that the driver had a past history of licence suspensions.
In this case, the evidence is clear that the Appellant saw her boyfriend show his driver’s licence to a security officer to prove his age, but she did not ask to see it herself, and she did not ask him to confirm that he was properly licensed to drive. The Tribunal finds that this is not enough to show due diligence in checking the status of her boyfriend’s licence before she allowed him to drive her vehicle. Under this impoundment legislation, she had a responsibility to do this, even in her unforeseen sickness situation. And by not doing so, she took a risk – small as it may have seemed at the time – and the law imposes the consequences of that risk upon her. The Tribunal finds that the Appellant has not proven that the “due diligence” grounds of her appeal.
Issue 2
Did the impoundment cause “exceptional hardship” within the meaning of s. 50.2(3)(d) of the Highway Traffic Act?
The legislative test for this ground of appeal is detailed and strict. Section 10 of the Regulation first requires that there is no alternative to the impounded vehicle. Section 10(4) states: “. . . 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.”
Even if the Appellant passes this first hurdle of showing no available alternative to the impounded vehicle, the next step for the Appellant is to show that the impoundment will result in a threat to health or safety, or that it will cause a financial, employment or education loss that will be “immediate, significant and lasting.” The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
Facts and Analysis
The evidence in this case shows that this impoundment has caused the Appellant stress, both because of work difficulties and because she is not seeing her son on the weekends. But there appear to be reasonable alternatives to her impounded vehicle, even if they may be inconvenient or expensive, such as occasionally renting a car. Furthermore, even if the Appellant had been able to prove that there is no alternative to the impounded vehicle, the loss caused to the Appellant does not meet the legislative test of being a threat to health or safety, or being a financial or employment loss that is “immediate, significant and lasting.”
On the issue of whether there is a reasonable alternative to the impounded vehicle, the Appellant has been able to continue working, even though her job sometimes requires her to work across the province with a number of her company’s franchised locations. She must do site visits to meet with contractors and others. When she is not travelling, she must go to her company’s office to work. She rented a car for a full week right after the impoundment, and then twice in the second week and not at all during the third week. She has also relied on her co-workers to drive her, and other times, she has taken a bus. Taking a bus requires her to wake up early and walk a lot, and this is very tiring for her because of her health situation.
The Appellant has an income of over $60,000 a year but she has very high monthly expenses of almost $3,000 for rent, car payments and child support. She understandably does not want to rent a car every day, and she may not be able to afford the expense of renting a car and paying for the impoundment fees. But she has been able to go to work and has not missed any days of work other than the day of the impoundment and the day of this hearing. The Appellant has not seen her son since the impoundment because of the long distance that she must travel to pick him up, and this is not practical to do by bus. She testified that she could not afford to rent a car to see him.
The Tribunal acknowledges that all of this has caused stress, extra expense and great inconvenience for the Appellant. But it does not meet the test of exceptional hardship as defined in the legislation. The Appellant has reasonable alternatives to her impounded vehicle.
But even if the Appellant could pass the first hurdle of showing that she has no reasonable alternative to her impounded vehicle, the evidence does not support a finding that there is any threat to the Appellant’s health or safety, or any financial or employment loss that is “immediate, significant and lasting.”
The Appellant was diagnosed with auto immune deficiency two months before the impoundment, and the symptoms vary. She feels very stressed by her health problems and this impoundment situation. She is exhausted and not motivated. She had to postpone two medical appointments, with a neurologist and an allergy specialist. This evidence is not enough to support a finding that the Appellant’s health is threatened.
As for the impact of the impoundment on the Appellant’s employment or finances, the Appellant has missed only two days of work as noted above. Although the Appellant has had to ask for a change in her duties, and she expressed a general concern about losing her job, she did not provide any details. The Tribunal does not find that there is evidence of a significant risk of her losing her job.
The costs of the occasional car rental and the impoundment fees will be expensive for the Appellant to pay because of her high monthly expenses. While the law permits the Appellant to sue the suspended driver for her costs, as suggested by the Ministry’s representative, this does not appear to be a practical solution in this case. The Tribunal finds that the Appellant likely will incur some debt because of this impoundment situation. However, there is no evidence to prove that her financial loss would be so significant that it would be of a “lasting” nature.
The Tribunal finds that the evidence does not meet the detailed requirements in the legislation to prove exceptional hardship as defined in section 10 of the Regulation. Though the Tribunal has some sympathy for the Appellant’s situation, especially with her recent health diagnosis, the Tribunal must assess the evidence and then apply the law as it is written in the Act and regulations.
The Tribunal finds that the Appellant has not proven its appeal on the grounds of “due diligence” or “exceptional hardship.”
DECISION
The Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
_______________________________
Gary Yee, Associate Chair
___________________________________
Bryant Greenbaum, Member
RELEASED: June 21, 2016