Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10208/MVIA
CASE NAME: 10208 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.
10208 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: May 25, 2016
REASONS FOR DECISION
Introduction
The Appellant appealed the impoundment of his vehicle which occurred when his daughter’s boyfriend drove it while his driver’s licence was under a Criminal Code suspension. The Appellant had bought this vehicle for his two daughters to use. He was surprised to find out, after the impoundment, that one of his daughters had permitted her boyfriend to drive the vehicle. The possible grounds of appeal are whether the motor vehicle was “stolen” or whether the Appellant had exercised “due diligence” in attempting to check the status of the suspended driver’s licence. Another issue is whether the impoundment has caused “exceptional hardship” as defined in the legislation.
The Tribunal finds that this unfortunate situation does not support any of the grounds of appeal. As a result, the vehicle will remain impounded for the required 45 days.
The Tribunal permitted the Appellant and his spouse, AJ, to testify at the same time in this telephone hearing. The Ministry’s representative did not oppose this procedure, which was a helpful, informal and efficient way to hear the relevant evidence. The Tribunal found both the Appellant and AJ (Mr. and Ms. J) to be credible, forthright and honest witnesses.
Issue 1
Did the Appellant prove that his vehicle “was stolen at the time it was detained in order to be impounded,” as stated in section 50.2(3)(a) of the Highway Traffic Act?
Facts
Mr. and Ms. J already had two vehicles, but they needed a third one for their two daughters to share. One daughter was working full-time and the other one, SJ, was working part-time and also going to school full-time. This third vehicle was also very useful for helping out AJ’s elderly parents with visits and medical appointments. The Appellant bought this vehicle in October 2015.
On April 26, 2016, at 11:55 p.m., according to the Notice to Registrar of Suspension and Impoundment, SJ’s boyfriend (CW) was stopped for speeding, and the vehicle was impounded because CW was under a licence suspension due to impaired driving. Indeed, CW had several impairment-related offences, convictions and suspensions.
When SJ told her parents, they were very surprised – they had no expectation that CW would drive their vehicle. Mr. and Ms. J explained that SJ only recently started dating CW, and they had only seen him at their house a handful of times. They knew nothing about his driving record, or that he would be driving the vehicle. They did not ask CW to see his licence because it was not an issue that would come up, given that they had just met him a few times and they did not expect that he would be driving their vehicle.
Neither parent was aware of any other time that SJ had lent the vehicle to someone else. AJ said that she asked her daughter (SJ) about this, and she said that this was the only time. Mr. and Ms. J do not recall ever explicitly telling either daughter that no one else is ever permitted to drive the vehicle. Since this impoundment has happened, they now know that they need to do this, and they have now told their daughters that they are forbidden from letting anyone else drive the vehicle. Furthermore, they stated that they will have to start checking the licences of possible drivers, and even calling the Ministry’s telephone service to verify the status of a driver’s licence. But they submit that this is not something that any ordinary person would do in these situations. Also, they question how anyone can be expected to check on a person’s driver’s licence status when they don’t know that this person would be driving.
Mr. and Ms. J did not want to say that CW stole their vehicle because he seemed like a “nice guy”, and he was already in trouble and did not need more problems. The Ministry’s representative emphasized that SJ freely permitted CW to drive the vehicle and there were no specific instructions from her parents about who was allowed to drive.
Analysis
On the facts of this case, the Tribunal finds that this vehicle was not stolen from the Appellant when CW drove it. The evidence is clear that the Appellant and his spouse did not give any instructions or conditions to their two daughters that limited the use of this vehicle when they bought it for them to share. It is not enough for the Appellant to say he would have said “no” if he had been asked about whether CW was permitted to drive the vehicle. Many situations involving sharing a family vehicle may involve unspoken expectations or presumptions. The Tribunal is not prepared to consider the vehicle as “stolen” just because the vehicle owner may be surprised that a family member who was allowed to regularly use the vehicle ends up letting someone else drive it.
The evidence in this appeal does not support a finding that the Appellant’s vehicle was stolen from him when his daughter permitted her boyfriend to drive it.
Issue 2
Did the Appellant prove that he 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?
Analysis
The Appellant and his spouse indicated that they didn’t see how they could be expected to check the driver’s licence of CW when they did not think he would be driving. This highlights a problem with applying this section to these kinds of circumstances. The definition in s. 50(2)(3)(c) refers to an owner checking the driver’s licence status of the person driving at the time of the impoundment. It is questionable whether this can be broadened to cover a situation where the vehicle ends up being driven by someone completely unanticipated or someone who was a complete stranger to the vehicle owner. In such a situation, there can be no specific opportunity to determine whether this driver had a valid licence. But even if “due diligence” could be broadened in this way, that would not help the Appellant in this case. He had met his daughter’s boyfriend a few times and he did not do anything to inquire into CW’s driver’s licence status. While this may have been understandable in some ways and perhaps many parents would have done the same thing in similar circumstances, this does not meet the legislative test.
Issue 3
Did the impoundment cause “exceptional hardship” within the meaning of s. 50.2(3)(d)?
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 the health or safety (which wouldn’t be applicable in this case), 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 Appellant acknowledged the difficulty of meeting this legislative test. The Appellant and his spouse testified that the loss of this third family vehicle meant that they were “struggling,” it was “extremely difficult,” and they couldn’t afford the impoundment fees that would end up being over $2,000. Mr. and Ms. J adjusted their work schedules or appointments so that they could drive their daughters or help with Ms. J’s elderly parents. They did not want to rent a vehicle because that would just add to their expenses. The Tribunal finds that the evidence presented is far from meeting the requirements in the legislation to prove exceptional hardship as defined in section 10 of the Regulation.
The Appellant are understandably upset about his situation, and they asked the Tribunal to exercise some discretion and recognize that they are just two law-abiding parents trying to do the right thing to help their daughters and their elderly parents, and that they should not have such a harsh all-or-nothing consequence for their daughter’s boyfriend’s wrongdoing. The Tribunal must apply the law. Though there may be some sympathy for the Appellant’s situation, this does translate into any power for the Tribunal to reduce the impoundment period, for example, or to interpret the law in a manner that is not supported by the wording of the provisions.
The Tribunal finds that the Appellant has not proven its appeal on any of the three grounds of “stolen,” “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
RELEASED: May 27, 2016