Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
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:
M.B & T.B
Appellants
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Jacqueline Castel, Member
Appearances:
For the Appellants: Self-represented
For the Respondent: Stella Velocci, agent
Heard by teleconference: December 12, 2017
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellants are appealing the impoundment of their motor vehicle on the grounds that:
(i) their son exercised due diligence in attempting to determine that the licence of the driver, at the time of the impoundment, was not then under suspension; and
(ii) the impoundment has resulted in exceptional hardship to the appellants.
2The appellants loaned their vehicle to their son to visit his girlfriend in a different city. During this visit, their son attended a party where he consumed alcohol. Recognizing that it would not be safe or lawful for him to drive the vehicle, he allowed another guest at the event (“J.D.M.”) to drive him home. J.D.M. did not disclose to the appellants’ son that his licence was under suspension or that he had consumed alcohol at the party.
3While driving the appellants’ vehicle, J.D.M. was stopped by a police officer who determined that he was impaired and also a suspended driver. As such, the police officer detained the appellants’ car, and directed that it be removed to an impound facility for 45 days.
4The appellants are both employed; T.B. as a registered nurse, and M.B. as a programmer for the federal government. They have a second vehicle which T.B. uses to get to and from work. M.B. has been able to take public transportation to and from work. The appellants have another son, who is autistic, and require a vehicle to take him to his therapy appointments. Their son has had to miss one or two therapy appointments as a result of the impoundment of their vehicle.
5Considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”), I am required to determine (i) whether appellants’ son exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension at the time of the impoundment; and (ii) whether the impoundment will result in exceptional hardship.
6I find that the appellants’ son did not exercise due diligence, and that the appellants have not demonstrated that there is no alternative to the impounded vehicle. Accordingly, I confirm the impoundment. Reasons follow.
B. ISSUES:
7The appellants raise two issues on this appeal:
(i) Did the appellants’ son exercised due diligence in attempting to determine that the licence of the driver was not under suspension at the time of the impoundment?
(ii) Will the impoundment result in exceptional hardship?
C. EVIDENCE:
Appellants’ Evidence
8The appellant, M.B, represented himself and his wife at the hearing. He testified that he and his wife allowed his son to drive their vehicle so that he could visit his girlfriend. Their son attended a party where he consumed alcohol. There was an altercation at the party and the police was called. Their son was not involved in the altercation. The police directed all the guests at the party to go home.
9The appellant testified that his son knew he had consumed too much alcohol to drive. He considered leaving the car parked on the road but was worried about doing this, as he had a prior experience of having the tires on his parents’ vehicle slashed in this area of the city.
10One of the appellants’ son’s acquaintances from high school, J.D.M., who was at the party, offered to drive him home. His son has not had any contact with J.D.M. for roughly two years and did not know his licence was under suspension, nor did he know that J.D.M. had been consuming alcohol at this party. The appellants’ son asked J.D.M. if he was “ok” to drive and J.D.M. responded “yes”. J.D.M. did not disclose that he had been consuming alcohol at the party or that his licence was under suspension.
11In response to a question from Ms. Velocci, the appellant stated that his son did not ask to see J.D.M.’s driver’s licence, nor did he call the Ministry’s 24-hour 1-800 number to determine whether J.D.M. had a valid licence.
12The appellant disclosed that he and his wife have a second vehicle. His wife works as a registered nurse, and her place of employment is located in a different city approximately one hour from where they reside. As there is no public transportation between the two cities, she is using their second vehicle to get to and from work. The appellant is using public transportation to get to his job in the federal government. The appellants have not had to miss any employment as a result of the impoundment of their vehicle.
13The appellants have a second son who is autistic. He has had to miss one or two therapy appointments as a result of the impoundment, as his mother needed their remaining vehicle to get to work. According to the appellant, public transportation is not available to get to and from these appointments.
14In response to a question, the appellant stated he did not rent a vehicle because it would cost about $2,000 to rent a vehicle for the 45-day impoundment period, and he considered this to be too expensive.
Respondent’s Evidence
15Ms. Velocci filed the following documents which were admitted into the record:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the appellants as owners.
Copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle, at the time it was detained, was being driven by a person who was impaired and also previously convicted of impaired driving under the Criminal Code of Canada R.S.C. 1985, Chap. C-46 (the “Criminal Code”) as outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment; and
Copy of the Ministry of Transportation records indicating that the driver, at the time of impoundment, was convicted of impaired driving under the Criminal Code on February 14, 2017 pursuant to which his driver’s licence was suspended until February 9, 2018; and that the driver’s licence was suspended until October 16, 2018 for impaired driving on November 11, 2017.
D. LAW:
16Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Under section 55.1 of the HTA, the impound period is 45 days if there has been no previous impoundment in the last two years.
17Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellants appeal on the basis of paragraphs (c) and (d) of s. 50.2(3), which state:
(c) that the owner of the motor vehicle 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 was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
18In order to establish that the appellants exercised due diligence within the meaning of s. 50.2(3)(c) of the HTA, they must prove that they made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was detained.
19Section 10 of O.Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship exists. 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.
20If the appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal is required to consider, under s. 10(1) of the Regulation, whether the impoundment will result in:
(a) a threat to the health or safety of any person ordinarily transported in 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.
21In limited circumstances, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:
financial or economic loss to any person;
loss of employment or employment opportunity to any person; or
loss of education or training or of an educational or training opportunity to any person.
22The financial, employment and educational losses listed above may only be considered if all the criteria listed in s. 10(3) of the Regulation are met:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle;
(ii) will not be a result of a loss by the suspended driver of the type set out in clause 2(b),(c) or (d).
23Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
24Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.
E. ANALYSIS:
Due Diligence
25Under the HTA, to establish due diligence, the appellants must prove they made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time of the impoundment.
26The appellants loaned their vehicle to their son who attended a party and consumed too much alcohol to drive legally and safely. The appellants’ son allowed an acquaintance who was also attending the party to drive him home. The appellants’ son did not testify at the hearing. The appellant submitted that he believed his son exercised due diligence when he asked the driver if he was “ok” to drive and the driver responded “yes”. The appellant acknowledged that his son did not ask to see the driver’s licence and would not have been aware of the Ministry’s 24-hour 1-800 number for verifying whether a driver’s licence is valid.
27I disagree that simply asking an acquaintance at a party if he was “ok” to drive when there had been drinking at this party constitutes due diligence. While I appreciate that he may not have been aware of the Ministry’s 24 hour 1-800 number for verifying the status of a driver’s licence, due diligence requires making all reasonable efforts to determine that the driver has a valid licence. All reasonable efforts would have, at a very minimum, involved asking to see the driver’s licence, which the appellants’ son did not do.
28In failing to verify the driver’s licence, before allowing him to drive the vehicle, the appellants’ son did not make all reasonable efforts to confirm that the driver’s licence was not under suspension and, therefore, did not exercise due diligence in the circumstances.
Exceptional Hardship
29To establish exceptional hardship under s. 50.2(3)(d) of the HTA, the appellants must first establish that there is no alternative to the impounded vehicle, which requires that they consider every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle or making arrangements to do without any motor vehicle during the impound period.
30I accept the appellant’s evidence that the impoundment has caused some inconvenience. However, under s. 10(2)(a) of the Regulation, I am not permitted to consider inconvenience, and the appellants have not established that there is no alternative to the impounded vehicle. The appellant was very forthright in disclosing that he and his wife have a second vehicle which his wife is using to get to and from work, and that he is managing getting to and from work using public transportation. There has been no loss of income as a result of the impoundment.
31While the appellants’ other son has missed one or two therapy appointments during the impoundment period, I am not satisfied that the appellants explored all reasonable options for transporting him to these appointments, including using their second vehicle, taxis or a rental vehicle. The appellant testified that he felt it would be too expensive to rent a vehicle for the entire 45-day period of impoundment, but did not address why renting a car on the days of their son’s therapy appointments was not considered.
32Given that there are alternatives to the impounded vehicle, the appellants have not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
F. ORDER:
33Therefore, for the above reasons, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellants’ motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
Jacqueline Castel, Member
Released: December 14, 2017