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

Date: 2017-11-02

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:

H.J.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Adjudicator: Evelyn Spence, Member

Appearances:

For the Appellant: H.J.R.

For the Respondent: Stella Velocci and Stephen Grootenboer, Agents

Teleconference hearing:

October 27, 2017

REASONS FOR DECISION AND ORDER

A. Overview:

1On September 19, 2017, H.J.R.’s boyfriend of two years, D.P., was stopped by police as he was driving a vehicle that was registered to H.J.R. After checking D.P.’s identification, the police officer determined that D.P.’s driver’s licence was suspended until May 28, 2018 for a Criminal Code-related offence. As a result, the police officer detained H.J.R.’s car and directed that it be removed to an impound facility for 45 days.

2H.J.R. appealed the impoundment to the Tribunal. She alleges that she exercised due diligence to determine D.P.’s driver’s licence was not suspended at the time of the impoundment, and further, that the impoundment will result in exceptional hardship to her and her family. In particular, H.J.R. claims that she is unable to pay the $3,000.00 to get her vehicle out of the impound facility.

B. ISSUES:

3The issues to be determined in this appeal are:

a. Whether the appellant exercised due diligence in attempting to determine that D.P.’s licence was not under suspension at the time of the impoundment; and

b. Whether the impoundment will result in exceptional hardship.

4H.J.R. must establish the grounds of appeal on a balance of probabilities.

C. LAW:

5Under the Act, 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. Section 55.1 of the Act sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

6Subsection 50.2(3) of the Act lists four grounds on which an owner of the impounded vehicle may appeal and on which I may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraphs (c) and (d) of s. 50.2(3), which state:

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; or

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

7In order to establish that the appellant exercised due diligence within the meaning of s. 50.2(3)(c) of the Act, the appellant must prove that she made all reasonable efforts to determine that the licence of the driver was not under suspension at the time the vehicle was detained.

8Similarly, section 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. 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 impound period.

9Only if the appellant is able to demonstrate that there exists no alternative to the impounded vehicle does the Regulation permit me to proceed to consider other enumerated factors, including financial loss under s. 10(2)(b) or (c) of the Act.

10Following a hearing, under s. 50.2(5) of the Act, I may confirm the impoundment or order the Registrar to release the motor vehicle. If the vehicle is ordered released, the appellant will be relieved of the costs associated with retrieving the vehicle from impoundment.

D. EvIDENCE And ANALYSIS:

Due Diligence

11To establish that H.J.R. exercised due diligence within the meaning of section 50.2(3)(c) of the Act, she must show that she took all reasonable steps to determine that D.P.’s driver’s licence was not under suspension, and that at the time of the impoundment, she had an honest and reasonable belief that her car was being driven by someone with a valid driver’s licence.

12H.J.R. testified that she assumed D.P. had a valid driver’s licence, but had never made any inquiries; she had never seen or asked to see D.P.’s licence, and at no point had she ever checked D.P.’s driving record with the Ministry of Transportation. The first time H.J.R. learned that D.P.’s licence was suspended was from the police, when they advised her of the impoundment.

13In light of H.J.R.’s evidence, I find that she did not take steps to verify the status of D.P.’s licence and has therefore failed to prove that she exercised any degree of due diligence, as required under the Act.

Exceptional Hardship

14I am further required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Act and regulations.

15H.J.R. was very emotional and earnest as she explained the difficulties she and her family have faced since the impoundment of her vehicle. At the time when she filed the appeal, H.J.R. said she didn’t believe it would be manageable to accommodate the family’s respective work and school schedules. However, with only a few days left before the vehicle will be available for release, she admits they were able to cope better than anticipated.

16H.J.R. said that the impoundment of her vehicle caused her son to miss out on a few shifts and resulting wages, but, in part due to the recent and ongoing faculty strike at his college, he has experienced limited disruption to his education. She said she had to take a few days off of work “here and there”, but that she was able to take those days as paid leave. D.P. has been able to continue to work during the period of impoundment and has not suffered any loss of employment.

17Despite the above, H.J.R. asserts that the cost of the impoundment itself is a hardship. She testified that D.P., while acknowledging responsibility for his part in this matter, is not able to pay the costs associated with the impoundment, and she does not have the money to pay the impound fees.

18The test for exceptional hardship is very specific, and limited. To establish exceptional hardship under s. 50.2(3)(d) of the Act, H.J.R. would need to establish that there is no alternative to the impounded vehicle, taking into consideration every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

19H.J.R. explained that the impounded vehicle was shared among herself, her son, and D.P., and that they do have another vehicle, which is in good working order. Her son had been the primary user of the impounded vehicle, but D.P. also used it on occasion. H.J.R. testified that her son and D.P work in the town where they live, but H.J.R. is required to travel to another town for her job. She has relied on one of her colleagues, who also resides in her town, to drive her to work on occasion. Both she and her son have been able to use their second vehicle to get themselves to work, to appointments and to drive D.P. to his work in the mornings. They also take the bus, when possible.

20On the evidence, it is clear that there is an alternative to the impounded vehicle within the meaning of s. 10(4) of the Regulation, and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the Act cannot be met.

E. CONCLUSION:

21Although I am sympathetic to the position in which H.J.R. finds herself, I am bound by the provisions of the legislation. I find that the appellant’s evidence fails to support a finding that she exercised due diligence in attempting to determine that D.P.’s licence was not under suspension at the time the vehicle was impounded, or that exceptional hardship has resulted.

ORDER:

22For the reasons set out above and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of H.J.R.’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.