C. V. v. Registrar of Motor Vehicles, 2017 CanLII 50053

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-26

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

Between:

C. V. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Theodore Crljenica

Appearances:

For the Appellant: C. V.

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference June 21, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1A hearing was held on June, 21, 2017 by teleconference to consider the appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).

2The appellant’s vehicle was impounded on May 17, 2017. A Notice of Impoundment was issued which stated that the vehicle would be impounded for a period of 45 days. The appellant filed his appeal on May 25, 2017.

3The appellant’s nephew, B.R. V., was driving the vehicle at the time of the impoundment. His licence had been suspended as a result of a Criminal Code conviction. The appellant knew that B.R. V.’s licence had been suspended, but he did know that the suspension was a result of a Criminal Code violation.

4In his Notice of Appeal, the appellant appealed on the grounds of “due diligence”. Prior to the hearing, the appellant put the registrar’s office on notice that he was also appealing on the grounds of “exceptional hardship”. The registrar’s agent did not object to this additional ground of appeal being argued and considered.

5For the reasons set out below, I find that the facts on which the appellant has based his due diligence claim has met the requirements of the legislation. I also find that the appellant has not made out a case of exceptional hardship. Accordingly, I confirm the impoundment.

ISSUES

6The issues are:

i. Did the appellant exercise 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?

7The appellant must establish the grounds of appeal raised on a balance of probabilities.

ANALYSIS

8When a vehicle has been impounded under section 55.1 of the HTA, as is the case here, the impound period is 45 days if there has been no previous impoundment in the last two years. In this case, it is a 45 day impoundment period.

9Subsection 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 relevant provision for the analysis of due diligence is subsection 50.2(3)(c) which states:

50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are:

(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;

(d) that the impoundment will result in exceptional hardship.

Due Diligence

10From time to time, B.R. V. required the use of a motor vehicle. An arrangement had developed over five or six occasions whereby the appellant allowed John, a friend of B.R. V., to drive the vehicle to chauffer B.R. V. The appellant confirmed that John had a valid driver’s licence.

11The usual practice was that B.R. V. and John would arrive at the appellant’s home by taxi. The appellant would give the car keys to John. He and B.R. V. would take the vehicle for up to a few hours. On their departure from, and return to, the appellant’s home, the appellant observed John driving the vehicle. It was always understood that the vehicle would only be driven by John.

12On May 17, 2017 the appellant gave possession of this vehicle to John. When B.R. V. and John left the appellant’s home, John was driving. A few hours later, the appellant received a telephone call from B.R. V.’s wife. She was in the vehicle with B.R. V. She advised the appellant that B.R. V. had been driving the vehicle, that they were pulled over by the police, and that the vehicle was being impounded.

13The appellant’s position is that he exercised due diligence by determining that John had a valid driver’s licence when he turned over to him possession of the vehicle, and that only John was to drive the vehicle i.e. B.R. V. was not to drive the vehicle. On previous occasions, the appellant allowed John to drive the vehicle in order to chauffer B.R. V. and, based on his observation of John driving the vehicle on these occasions, he had no reason to believe that B.R. V. would drive the vehicle.

14As submitted by Mr. Kapur on behalf of the registrar, on the facts of this appeal, the key words in determining if the appellant has proven due diligence are, “the driver’s licence of the driver of the motor vehicle at the time it was detained”. That person was B.R. V., not John.

15Thus, the issue is whether the appellant’s due diligence in regard to John is sufficient to meet the legislative requirement. This issue was recently decided by this tribunal in 10776 v Registrar of Motor Vehicles (as of yet, unreported – May 25, 2017). In that case, like the present appeal, the owner checked the licence of the person the owner believed would be driving the vehicle. Then, another individual, whose licence the owner knew was under suspension, drove the vehicle at the time it was detained to be impounded. In that case, it was ruled that if the person who the owner believed would be driving the vehicle had been the suspended driver, the appellant might have been able to establish the due diligence required by the legislation. However, because the owner knew that the licence of the driver at the time the vehicle was detained to be impounded was under suspension, due diligence could not be established.

16The appellant sought to distinguish 10776 v Registrar of Motor Vehicles on the basis that in that case the vehicle had been loaned for a week, rather than for a few hours. It was also submitted that 10776 v Registrar of Motor Vehicles did not provide a reasonable interpretation of the HTA, as the care and control of the vehicle had been turned over to a driver whom the appellant confirmed had a valid driver’s licence.

17I do not accept the length of time that the vehicle is loaned is a relevant basis on which to distinguish this appeal. The legislation does not recognize different standards for due diligence based on the intended length of time for which the vehicle is being loaned.

18I agree with the reasoning in 10776 v Registrar of Motor Vehicles. The plain meaning of the words in s. 50.2(3)(c) of the HTA are directed at the licence status of the person driving when the vehicle is impounded, not the licence status of the person to whom the vehicle was entrusted.

19Secondly, the legislation has a very important public safety aspect to it that is to keep unlicensed drivers off of the roads because they have been deemed unfit to drive. As such, they are a danger to others on the roads.

20When the owner of a vehicle entrusts the vehicle to another person on the condition that only that person will drive the vehicle, it is vehicle owner who should bear the risk if the person to whom the owner entrusted the vehicle allows an unlicensed person to drive. As stated in 10776 v Registrar of Motor Vehicles:

It is unfortunate that the Appellant’s trust that G.W. would not drive the vehicle was misplaced.

21Although I have sympathy for the dilemma in which the appellant finds himself, the societal benefit of making the roads safer outweighs the appellant’s view that in this type of situation the legislation is unfair. I find that the appellant did not exercise due diligence as required under section 50.2(3)(c) of the Act.

Exceptional Hardship

22The appellant testified that he suffers from depression, anxiety and claustrophobia. He submitted into evidence a decision of the Social Benefits Tribunal from August 2015 in which it was determined that he suffers from depression and anxiety to such an extent that he cannot work and is entitled to receive Ontario Disability Support Plan (ODSP) benefits.

23He also testified that he lives with his brother. When asked if the appellant pays rent to his brother, the appellant responded that they share costs “up the middle” and the appellant does the upkeep on the house.

24The appellant’s brother works full time, owns a vehicle and drives to work. According to the appellant, his brother also suffers from heath issues and is very possessive of his vehicle. Although his brother has allowed the appellant to drive the vehicle on occasion, it has only been for 10 or 15 minutes at a time and will not allow the appellant to take it for longer periods of time. The appellant’s brother did not testify.

25The appellant testified that driving his vehicle for an hour or two on rural highways helps to relax him and thus is therapeutic for his depression and claustrophobia. It was his testimony that for the first three to five days following the impoundment he slept for up to sixteen hours a day and did not leave his home. The loss of his vehicle has “kicked the shit out of [him]” – he struggles to do daily chores such as cooking, laundry, and washing dishes. On occasion he goes for a walk around his home, but this does not relax him.

26Since the impoundment, he has not been able to visit his daughter and grandchild who live about two hours away. He normally visits them every two to three weeks. The impoundment has not resulted in any missed doctor’s appointments nor has it interfered with his ability to go to the pharmacy to obtain his medications.

27It was also the appellant’s evidence that, as an ODSP recipient, he cannot afford the towing and storage fees he will be required to pay to obtain the release of his vehicle at the end of the 45-day impoundment period.

28The registrar’s agent pointed out that under the HTA (s. 55.1(27)), the appellant can sue BRV for the expenses incurred by the appellant arising from the impoundment. The appellant’s response is that it is not likely that he could ever recover money from B.R. V. as he is currently incarcerated. He is also on ODSP and such benefits are not subject to garnishment.

29In response to a suggestion by the registrar’s agent that the appellant can rent a car on occasion to visit his family or for therapeutic purposes, the appellant stated that he cannot afford to do so.

30Pursuant to section 10 of O. Reg. 631/98, when considering this appeal alleging exceptional hardship, this tribunal must consider if the appellant has established that there is no alternative to the impounded vehicle available to the appellant. This requires that the appellant has established that he has considered and inquired into every reasonable option to eliminate or mitigate any threat or loss. If there is no alternative to the impounded vehicle, then the tribunal may consider whether the appellant has established that the impoundment will result in a threat to his health or safety or a financial, employment or economic loss that is immediate, significant and lasting. The tribunal may not consider whether the impoundment will cause inconvenience to any person.

31The appellant’s claim of exceptional hardship is based on his need to take long drives for therapeutic purposes and that he cannot visit his daughter and grandchild as a result of the impoundment.

32Although I would have preferred to have heard evidence from the appellant’s brother, I am satisfied that the appellant’s brother’s vehicle is not an alternative available to the appellant.

33However, I am not satisfied on the balance of probabilities that the appellant has met the balance of the requirements set out in section 10 of the regulation for this appeal to succeed.

34In the absence of information from the appellant’s medical provider(s), I do not know how often the appellant should go for long drives for therapeutic purposes, or even if this is a recognized form of therapy. I also note that there is no reference in the ODSP decision to the appellant being claustrophobic. Nor do I know that the absence of a vehicle is a “threat to his health or safety” (emphasis added).

35From a financial perspective, the appellant does not pay rent to his brother. They share expenses equally. I know that the appellant is in receipt of ODSP benefits. I do not know how much disposable income is available to him. Thus, even if the vehicle were necessary for his health or safety, merely telling the tribunal that he cannot afford to rent a car for therapeutic purposes is not sufficient to establish that it is not a reasonable alternative available to him.

36As for his inability to visit his daughter and grandchild, in my view, this is an inconvenience. He will miss one, possible two visits during the period of impoundment.

37It is not sufficient that the owner of an impounded vehicle suffer hardship – it must be “exceptional hardship”. It is my determination that the appellant has not proven his case as required by section 50.2 of the HTA and regulation 631/98 on the balance of probabilities.

ORDER

38For the reasons set out above I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.