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:
S.N.H.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Adjudicator: Laurie Sanford
Appearances:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Teleconference Hearing: June 18, 2018
REASONS FOR DECISION AND ORDER
A. Overview:
1S.N.H. owns 4 cars that his family uses and a fifth car he uses in his business. One of these cars, a Mazda M31, is routinely driven by his daughter, B.H. On June 13, 2018, B.H. loaned the car to a man named K.A.D. K.A.D. was stopped by police who determined that his licence was suspended for a Criminal Code offence. As a result, the police officer detained S.N.H.’s car and directed that it be removed to an impound facility for 45 days.
2S.N.H. appealed the impoundment to the Tribunal. He asserts that his daughter exercised due diligence to determine that K.A.D.’s driver’s licence was not suspended at the time of the impoundment, and further, that the impoundment will result in exceptional hardship to himself, his daughter or his family.
3For the reasons set out below, I conclude that S.N.H. has not established either that his daughter exercised due diligence to determine that K.A.D.’s driver’s licence was not suspended or that the impoundment will result in exceptional hardship to himself, his daughter or his family. Therefore, I confirm the impoundment of the motor vehicle.
B. ISSUES:
4The issues to be determined in this appeal are:
a. Whether B.H. exercised due diligence in attempting to determine that K.A.D.’s licence was not under suspension at the time of the impoundment; and
b. Whether the impoundment will result in exceptional hardship.
5S.N.H. must establish the grounds of appeal on a balance of probabilities.
C. LAW:
6Under the Highway Traffic Act, (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.
7Subsection 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. S.N.H. 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.
8S.N.H. was apparently not present when the motor vehicle was loaned to K.A.D. It was his daughter who had custody of the car at all relevant times. S.N.H. was relying on his daughter to determine who would drive the car. In order to establish that due diligence was exercised within the meaning of s. 50.2(3)(c) of the Act, S.N.H. must prove that his daughter made all reasonable efforts to determine that the licence of the driver was not under suspension at the time the vehicle was detained.
9Section 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.
10Only if S.N.H. 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.
11Following 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 having the vehicle in the impoundment facility.
D. EvIDENCE And ANALYSIS:
Due Diligence
12To establish that B.H. exercised due diligence within the meaning of section 50.2(3)(c) of the Act, S.N.H. must show that she took all reasonable steps to determine that K.A.D.’s driver’s licence was not under suspension.
13S.N.H. testified that his daughter is 18 and has little experience with inspecting a driver’s licence. She did ask K.A.D. to show her his driver’s licence but she did not inspect it. B.H. saw the licence from a distance and did not observe that it had been suspended. Nor did she apparently notice that the licence had expired in April, 2018. S.N.H. testified that his daughter made a mistake. There is no evidence that B.H. made any other inquiries. She did not apparently check K.A.D.’s driving record with the Ministry of Transportation.
14I find that, while B.H. did ask to see K.A.D.’s driver’s licence, she did not inspect it or take any steps to verify the status of K.A.D.’s licence. S.N.H. has failed to prove that his daughter exercised due diligence to determine the status of K.A.D.’s licence as required under the Act.
Exceptional Hardship
15S.N.H. testified about the effect that the loss of the motor vehicle has had on his daughter and the rest of the family. His daughter is out of school for the summer and has two jobs. She is required to commute to these jobs and does not set the hours that she works. Occasionally, she can ride to work with her mother but usually she must either hire an “Uber” cab or take public transportation. While she has retained both her jobs, she has been late for work on occasion during this impoundment.
16B.H. uses her mother’s credit card to pay for the Uber cabs and her mother is expecting to be repaid for this. S.N.H. testified that all members of his family help pay the mortgage and B.H. will be short of money because of the costs of the impoundment.
17S.N.H. testified that another daughter also drives one of his cars and is on vacation out of the country for a week. However, S.N.H.’s evidence was that the daughter on vacation is particular about who drives the car and is unwilling to let B.H. use it in her absence.
18The impoundment will end on June 30, 2018. S.N.H. testified that he will have to borrow money to pay the impoundment fees, which will further strain the family resources.
19The test for exceptional hardship is very specific and limited. To establish exceptional hardship under s. 50.2(3)(d) of the Act, S.N.H. 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.
20In this case, there are options available to B.H. She may take an Uber cab or use public transportation. These options are inconvenient, according to S.N.H., but the fact that B.H. remains employed is evidence that the alternative transportation options are working. There is also the option of using the motor vehicle which is owned by S.N.H. and is currently unused while its usual driver is on vacation.
21On the evidence, it is clear that there are alternatives 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:
22Although I am sympathetic to the position in which S.N.H. and B.H. find themselves, I am bound by the provisions of the legislation. I find that S.N.H.’s evidence fails to support a finding that B.H. exercised due diligence in attempting to determine that K.A.D.’s driver’s licence was not under suspension at the time the vehicle was impounded, or that exceptional hardship has resulted.
ORDER:
23For the reasons set out above and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of S.N.H.’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
LICENCE APPEAL TRIBUNAL
________________________
Laurie Sanford
Released: July 5, 2018