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:
N.G.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Sandeep Johal, Member
Appearances:
For the Appellant: N.G.
For the Respondent: Sanjay Kapur, Agent
Place and date of Hearing: Teleconference January 24, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1The appellant is the owner of a 2004 Toyota. The appellant’s son borrowed the vehicle to go out with his friends. He was too intoxicated to drive so his friend T.D. volunteered to drive. Unbeknownst to the appellant or her son, T.D.’s licence was suspended. The driver was charged under the Highway Traffic Act (“HTA”) with driving while under suspension and the appellant’s vehicle was impounded for 45 days.
2The appellant did not file her complete notice of appeal to the Tribunal within the legislated timeline and brought a motion seeking an order from the Tribunal granting an extension of time to file her appeal. The respondent consented to the motion, and the hearing, on consent of the parties, was held to hear the merits of the appeal.
3The appellant appealed the impoundment to this Tribunal on the basis 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 was not then under suspension. Second, the impoundment will result in exceptional hardship. The appellant asks that the Tribunal order the Registrar to release her vehicle.
4I am required to determine whether the impoundment will result in exceptional hardship, and whether due diligence was done by the appellant to determine whether the driver’s licence of the driver who was driving the vehicle at the time it was detained, was not suspended, considering the relevant provisions of the HTA and its regulations.
B. ISSUES:
5The two issues to be addressed in this appeal are as follows:
i. 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 was not then under suspension
ii. Will the impoundment of the vehicle result in exceptional hardship?
C. RESULT:
6I find that the appellant did not exercise due diligence in attempting to determine if the driver’s licence of the driver was not then under suspension, and the appellant has not proven the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
D. LAW:
7Under the HTA, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.
8Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle, and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of paragraphs (c) and (d) of subsection 50.2(3), which states:
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…was not then under suspension;
(d) that the impoundment will result in exceptional hardship.
9Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several criteria and factors that the Tribunal 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 impoundment period.
10If 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 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.
11In 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.
12Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
13The financial, employment and educational losses may only be considered if of the criteria 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).
14To summarise, the Tribunal may allow this appeal and order the Registrar to release the vehicle if the Tribunal is satisfied that the owner of the vehicle exercised due diligence in determining that the driver’s licence of T.D. was not under suspension at the time it was detained, or that the impoundment will result in exceptional hardship.
E. ANALYSIS:
Did the owner exercise due diligence to determine whether the driver’s licence of the driver was not under suspension?
15On the first ground of the appeal, it is my finding that the appellant did not conduct any due diligence to determine if the driver’s licence of the driver of the vehicle at the time it was detained, was not under suspension.
16The appellant’s son submits that the driver at the time of the impoundment entered the establishment where they were all drinking by showing her identification to the security personnel and it appeared to be a driver’s licence. As a result he assumed she had a valid driver’s licence.
17However, the wording in the ground for the appeal states, “the owner exercised due diligence…” and the fact that the appellant’s son attempted to do so would not, in my opinion satisfy this ground.
18Even if I was to accept that the appellant exercised due diligence, the mere fact of observing someone entering an establishment with some form of ID, without any further investigation, in my opinion does not equate to due diligence. The appellant’s son did not ask to see his friend’s driver’s licence and no evidence was noted that the identification used to enter the establishment was a driver’s licence.
19Having determined that the appellant did not exercise due diligence, I will move on to discuss whether the impoundment will result in exceptional hardship to the appellant.
Did the appellant suffer exceptional hardship?
20It is my finding that the appellant has not shown that exceptional hardship will result due to the impoundment.
21According to the appellant, she is unable to pay the impound fees and will lose her vehicle.
22I have little doubt that the costs of the impoundment are difficult to bear. However, in determining whether exceptional hardship will result from an impoundment, Regulation 631/98 states that the Tribunal shall not consider financial or economic loss unless the owner can demonstrate all four of the factors noted above in paragraphs 10 and 11 above.
23With respect to the first factor, I find that there is a reasonable alternative to the impounded vehicle available to the appellant. During the period of impoundment she has been able to obtain help from her mother “from time to time,” and she has also resorted to using taxi-cabs and public transit. The appellant further stated her husband has a vehicle and makes it available to the appellant when he is home on various weekends. The appellant’s son was ordinarily using the vehicle for transportation to school and for his employment however as stated by the appellant, she and her son have been able to use her mother’s vehicle and juggle all the different schedules for herself and her children. It may be rather inconvenient, however according to the Regulation, inconvenience to any person is not a factor that can be considered.
24As I have determined the appellant has failed to satisfy the first factor, that there is no alternative to the impounded vehicle, it is not necessary to consider the remaining factors.
25I conclude that the impoundment will not result in exceptional hardship as set out under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
26For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
LICENCE APPEAL TRIBUNAL
Sandeep Johal, Member
Released: February 28, 2018