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:
D.M.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: D.M.
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference:
August 30, 2017
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on August 30, 2017 to consider the appellant’s appeal of the impoundment of her 2006 Pontiac G6 (the “vehicle”) on July 25, 2017 for 45 days. At the time of the impoundment, the vehicle was driven by her husband.
2The appellant submits that she exercised due diligence and that the impoundment will result in exceptional hardship to her because she needs the vehicle to attend medical appointments.
B. ISSUES
3The issues to be determined are:
a. Did the appellant exercise due diligence to determine whether her husband’s driver’s licence was not under suspension?
b. Will the impoundment result in exceptional hardship?
C. CONCLUSION
4I find that the appellant’s evidence fails to support a finding that the appellant exercised due diligence to determine whether her husband’s driver’s licence was not suspended, or that the impoundment results in exceptional hardship.
D. LAW AND 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 of the Act, 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) of the HTA:
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) 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;
(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.
7The appellant seeks to have her vehicle released on the basis that she exercised due diligence in attempting to determine that the driver of the motor vehicle at the time it was impounded had a driver’s licence which was not under suspension; or alternatively that the impoundment will result in exceptional hardship.
Did the appellant exercise due diligence in attempting to determine that the driver’s licence was not under suspension?
8I find the appellant did not exercise due diligence in determining whether her husband’s driver’s licence was not under suspension. She admitted in her testimony that she knew his licence had been suspended, but thought that she was exercising due diligence by keeping the keys to the vehicle in her purse.
9“Due diligence” is not defined in the HTA. The definition of “due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is:
Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent person under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
10The plain reading of s. 50.2(3)(c) of the HTA establishes that the appellant must show that she took all reasonable steps to determine that the driver’s licence in question was not under suspension at the time of impoundment. The appellant admitted that she knew her husband’s licence was under suspension but said he drove the car without her permission while she was undergoing a medical episode. The appellant stated that her husband did not steal her vehicle.
11The respondent relies on 10776 v. Registrar of Motor Vehicles, 2017 CanLII 49173, a decision of the Tribunal at paragraph 16:
As the Appellant knew that the driver’s licence of G.W. was under suspension, it cannot be said that the Appellant exercised due diligence in attempting to determine that G.W.’s licence was not under suspension. It is unfortunate that the Appellant’s trust that G.W. would not drive the vehicle was misplaced. However, for the above reasons, the Tribunal finds that the Appellant did not exercise due diligence as set out in section 50.2(3)(c) of the Act.”
12Based on the evidence presented at the hearing, I do not find that the appellant exercised due diligence within the meaning of section 50.2(3)(c) of the HTA.
Will the impoundment result in exceptional hardship?
13I find that the impoundment will not result in exceptional hardship because the appellant owns another vehicle.
14Section 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 impoundment period.
15If 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.
16In limited circumstances described below, I may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:
(a) financial or economic loss to any person;
(b) loss of employment or employment opportunity to any person; or
(c) loss of education or training or of an educational or training opportunity to any person
17The financial, employment and educational losses listed above may only be considered if all of 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, and
(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).
18Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
19The appellant had neighbours take her to medical appointments after the impoundment, and rescheduled other appointments. She owns another vehicle and has chosen not to drive it. Although the appellant spoke of inconvenience, this is not a factor which the Tribunal takes into consideration.
20As the appellant has the help of neighbours and owns another vehicle, she has alternatives to the impounded vehicle available to her. Therefore, I am unable to consider the appellant’s submissions related to financial or economic loss. The appellant’s preference not to drive the other vehicle she owns is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.
21I find that the appellant has not only the help of neighbours but also the use of the other vehicle she owns as alternatives available to her. Therefore 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
22Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
Avril A. Farlam, Vice-Chair
Released: October 25, 2017