S.K. v. Registrar of Motor Vehicles, 2018 CanLII 104470

Date: 2018-07-31

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to section 55.1(3) of the Act.

Between:

S.K.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Marisa Victor, Member

APPEARANCES:

For the Appellant: S.K., Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: Teleconference July 9, 2018

REASONS FOR DECISION AND ORDER:

Overview

1S.K. appeals the 45-day impoundment of her 2017 Ford Explorer. Her vehicle was impounded after being driven by her son, H.H., who had a suspended licence. He was pulled over for failing to use a seatbelt and the vehicle was impounded at that time.

2The appellant was assisted in this appeal by her daughter, N.H., who translated for her mother.

3After considering the evidence, the Tribunal confirms the impoundment.

ISSUES

4The appeal grounds are that:

a. The impounded vehicle was stolen at the time it was detained;

b. The driver’s licence of the driver of the vehicle at the time it was detained was not under suspension;

c. The appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle was not under suspension; and

d. That the impoundment will result in exceptional hardship.

ISSUE 1: THE VEHICLE WAS NOT STOLEN

Evidence

5This ground of appeal was not one of the grounds listed in the case conference order; however, the appellant’s testimony raised this as a potential ground of appeal.

6The appellant testified that her daughter, M.H., asked to drive the appellant’s son, H.H., to go buy contact lenses. M.H. then felt ill and asked H.H. to drive back home. The car was stopped by police, due to H.H. not wearing a seatbelt, and the car was impounded when they realised that H.H. was driving while under suspension.

7The appellant stated that she did not know M.H. would give the car to H.H. She also stated that her son had no right to the car. However, when asked, the appellant stated there was no discussion about H.H. and driving when the appellant loaned the car to M.H. The appellant did not specifically prohibit M.H. from letting H.H. drive. She said there simply was no conversation about it.

8The respondent presented evidence that H.H. has a history of criminal convictions of a serious nature involving the appellant’s previous vehicle. In 2015, H.H., was convicted of driving the appellant’s vehicle in Alberta while his licence was suspended in Ontario. Although that conviction did not result in a 45-day impoundment, it nevertheless shows that H.H. was previously convicted of driving the appellant’s vehicle while under suspension.

Law and Analysis

9Under s. 50.2(3) (a) the Highway Traffic Act, R.S.O. 1990, c. H.8 (the HTA), an owner may appeal the impoundment of their vehicle on the basis that the motor vehicle was stolen at the time it was impounded.

10The standard of proof that applies to establishing if the vehicle was stolen is a civil standard, not a criminal one. Therefore, the vehicle must be shown to have been stolen based on a balance of probabilities.

11In this case, although the appellant felt that H.H. had no right to the car, she loaned her vehicle to M.H. and did not communicate to her that H.H. could not drive the car. She also did not tell H.H. directly that he could not drive the car.

12I find, under the circumstances, that the applicant has not met the test for establishing that the car was stolen. Instead the evidence shows that there was a series of voluntary lending of the vehicle within the family from the appellant to M.H. and then from M.H. to H.H. with no direction or specific prohibition from the appellant that made it clear H.H. could not drive the vehicle.

13I therefore find that this ground of appeal must fail.

ISSUE 2: H.H.’S DRIVER’S LICENCE WAS UNDER SUSPENSION

14Under s. 50.2(3)(b) the Highway Traffic Act, R.S.O. 1990, c. H.8 (the HTA), an owner may appeal the impoundment of their vehicle on the basis that the driver’s licence of the driver of the motor vehicle at the time it impounded was not then under suspension.

15The appellant testified that she believed that H.H. had a valid licence as she had given him money to pay off his fines, and the appellant believed that unpaid fines were the only reason H.H’s licence had been suspended.

16The respondent submitted the following evidence from H.H.’s driving record:

a. H.H. was convicted of failing to stop for a police officer, an offence under s. 249 of the Criminal Code, and therefore his driver’s licence was suspended pursuant to s. 41 of the HTA.

b. The conviction number for failing to stop for a police officer matched the conviction number noted on the Notice of Impoundment;

c. In addition to the suspension, H.H.’s driver’s licence had expired.

17Unfortunately, the appellant provided money directly to her son to pay fines but she did not confirm that fines existed or that these fines had been paid. Although she believed H.H. had paid his outstanding fines, and therefore had a valid licence, this was not the case.

18I accept the respondent’s uncontroverted evidence that H.H.’s driver’s licence was suspended at the time of the impoundment.

19This ground of the appeal must also fail.

ISSUE 3: THE APPELLANT DID NOT EXERCISE DUE DILIGENCE

20Under s. 50.2(3)(c) the Highway Traffic Act (HTA), the owner of the motor vehicle can appeal an impoundment on the basis that they exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it impounded, was not then under suspension.

21It is clear from the facts discussed above that in this case the appellant loaned the vehicle to M.H, not H.H., the suspended driver.

22The due diligence defence only applies if the appellant asked H.H. – the driver of the vehicle – for proof of a valid licence. She testified that she did not even have a discussion with H.H. about driving her vehicles.

23As the appellant did not exercise due diligence to establish whether H.H. had a valid licence, this ground of appeal must also fail.

ISSUE 4: THAT THE IMPOUNDMENT WILL RESULT IN EXCEPTIONAL HARDSHIP

Law

24Under s. 50.2(3)(d) the Highway Traffic Act (HTA), the appellant may appeal the impoundment of her vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.

25Section 10 of O. Reg. 631/98 (the Regulation) provides the criteria to be considered when determining the outcome of an appeal under this section.

26Under the Regulation, I must first consider whether no alternative is available for the impounded vehicle. This means that every reasonable option has been considered, including using public transit, taxis or another vehicle or planning to do without any motor vehicle during the impoundment period.

27Only if there is no alternative can I make a finding that exceptional hardship exists. The Regulation also states that I cannot consider inconvenience to any person as being exceptional hardship.

28Therefore, before I can consider if the appellant suffered exceptional hardship, I must find that there were no alternatives available.

Evidence

29The appellant testified that she lives in Toronto. After the impoundment of her vehicle, and during the school term, she relied on public transit to take her three younger children to middle school and high school. As her three younger daughters are all at different schools this involves multiple bus rides. However, the schools are roughly in her neighbourhood. One school is three bus stops away, the other is five bus stops away, and the final one is in walking distance. The appellant testified that she is scared of taking the bus and letting her daughters take the bus alone.

30A friend has also offered to help her and has been giving her lifts for grocery shopping, to visit her lawyer and to some other locations.

31The appellant was clearly emotional about the stress caused by her lack of vehicle. She emphasized her role as a good mother and her desire to keep her children safe and to drive them to school for that reason. She also made a heartfelt apology and said she would never lend her car again.

32The respondent provided plate-registration evidence that the appellant has another vehicle registered to her name. When asked, the appellant testified that she does own a Hyundai but that it requires an estimated $3000 of repairs. During the winter, she left it with a mechanic but she cannot afford to fix it and plans to sell it.

Analysis

33In order to show that she can appeal on the ground of exceptional hardship, the appellant was required to first prove that no alternative to the vehicle was available. I find that she has been unable to do so.

34The evidence shows that the appellant lives in a city well-serviced by public transit, which she used daily during the school year when the vehicle was impounded. She also had the assistance of a friend. Finally, she has ownership of another vehicle which could be fixed or sold and the proceeds used for other transit costs (e.g. taxi, car rental etc.)

35Unfortunately, the Regulations do not let me consider the test for exceptional hardship when there is alternative transport available, even if that alternative transport is inconvenient.

36The appellant apologized for her actions and said she will never allow anyone to borrow her car again. I understand this has been a very hard time for her and her family. Unfortunately, the Act and the Regulations provide me no discretion to take the appellant’s heartfelt apology into account. That being said, I commend the appellant for her apology and her expression of remorse.

37Under the circumstances, the ground of exceptional hardship also fails.

ORDER

38After considering the evidence, I confirm the impoundment of the Appellant’s motor vehicle for 45 days.