Date: 2018-03-06

Appeal under section s. 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:

F.M.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Marc-Roger Gagné, Counsel

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference: February 14, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1A teleconference hearing was held on February 14, 2018 to consider the appellant’s appeal of the impoundment of his 2005 Mazda (the “vehicle”) on November 26, 2017 for 45 days. An Order of this Tribunal dated January 17, 2018 extended the time for appeal and set a hearing date of January 24, 2018. At the request of appellant’s counsel and on consent of the respondent’s representative, the hearing was adjourned on January 24 and peremptory on February 1 and was heard February 14, 2018.

2The appellant submits that he exercised due diligence and that the impoundment will result in exceptional hardship to him because the purchaser of the vehicle needs the vehicle to get to work and attend medical appointments and because she is in financial hardship.

B. ISSUES

3The issues to be determined are:

a. Did the appellant exercise due diligence to determine whether the 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 the 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 HTA, 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 the vehicle released on the basis that he 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 the driver’s licence was not under suspension.

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 he took all reasonable steps to determine that the driver’s licence in question was not under suspension at the time of impoundment.

11The appellant did not testify but relied on F.N. who said she purchased the vehicle from the appellant in 2016 (“purchaser”). The purchaser did not give any testimony at the hearing about attempts by the appellant or herself to determine if the driver’s licence was under suspension or whether or not she or the appellant knew the driver had taken the vehicle on the day of the impoundment. There was no such evidence at the hearing and therefore this ground of the appeal must fail. Based on the lack of evidence presented at the hearing on this point, 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?

12I find that the impoundment will not result in exceptional hardship to the appellant because there was no evidence at the hearing that the impoundment will result in exceptional hardship to the appellant. The purchaser says that she purchased the vehicle from the appellant in 2016. She testified that the arrangement between the appellant and the purchaser was that the vehicle would remain in the name of the appellant until she finished paying for it. I accept this evidence of the purchaser. As a result, the registered owner at the time of impoundment was the appellant, consistent with the arrangement as explained by the purchaser and the record filed by the respondent.

13Appellant’s counsel says the purchaser testified at the hearing as agent for the appellant. Even if the purchaser could be considered the beneficial owner of the part of the vehicle that she had paid for or, as appellant’s counsel put it, agent for the appellant, the purchaser’s evidence was that she has alternatives to the impounded vehicle. The purchaser said she has been able to get to work by taxi, the bus and help from family and friends. She testified that she has missed one medical appointment which has been re-scheduled. Therefore, I find the appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of O. Reg. 631/98 (“the Regulation”) because she has alternatives to the impounded vehicle.

14Section 10 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 impound 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.

19Although the appellant spoke of inconvenience, this is not a factor which the Tribunal takes into consideration. As the purchaser has used taxis, the bus and has received the help of family and friends, she has alternatives to the impounded vehicle available to her. Therefore, I am unable to consider the purchaser’s submissions related to financial or economic loss.

20I find the appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

21Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. As the impoundment period has expired, the appellant may take steps to obtain the release of the vehicle at the appellant’s cost.