Date: 2019-09-13

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

Between:

Paul Panesar

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Patricia McQuaid

Appearances:

For the Appellant: Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference: September 12, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, Paul Panesar, appeals the impoundment of his 2008 Merz vehicle. On August 12, 2019, T.S., who is a suspended driver, was driving Mr. Panesar’s vehicle when he was stopped by police. The vehicle subsequently was impounded for 45 days, to September 26, 2019.

2Mr. Panesar bases his appeal on two grounds; first, that he exercised due diligence in attempting to determine that the driver of the vehicle at the time of the impoundment had a valid driver’s licence; and second, that the impoundment of his car has caused him exceptional hardship.

3The Registrar argues that Mr. Panesar has not shown that he exercised due diligence and not made out his onus to show that there is exceptional hardship and therefore the impoundment should be confirmed.

4After considering all of the evidence provided, and based on the reasons below, the Tribunal finds that Mr. Panesar exercised due diligence as required by s. 50.2(3)(c) and has established, on a balance of probabilities, that he has experienced exceptional hardship as a result of the impoundment. The Tribunal orders the Registrar to release the vehicle.

ISSUES

5The issues to be determined are:

• Whether the appellant exercised due diligence in attempting to determine that the licence of the driver of the vehicle was not under suspension at the time of the impoundment; and

• Whether the impoundment will result in exceptional hardship.

EVIDENCE And ANALYSIS

ISSUE 1: Did the appellant exercise due diligence

6The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Section 55.1 of the HTA serves as a deterrent to vehicle owners from deliberately or carelessly allowing suspended drivers to drive their vehicles.

7The appellant testified that on August 11, 2019, his friend T.S. asked to borrow his vehicle. The appellant has known T.S. for many years. He knew that T.S. had outstanding fines so asked to see his licence to ensure it was valid. T.S. assured him that he had paid the fines. The appellant inspected T.S.’s driver’s licence, saw that it was not expired and allowed T.S. to take the car. T.S. was stopped by police the next day, on August 12th, whereupon the police did a licence record check and as a result the vehicle was impounded.

8T.S.’s Driver Record, disclosed by the Registrar, shows that the fines were indeed paid, but it also indicates that T.S.’s licence was suspended on February 6, 2018 for three years for a Criminal Code violation. T.S. had not told the appellant about this suspension.

9There is no definition of “due diligence” in the HTA. Prior Tribunal decisions provide some guidance, stating that there is no absolute standard, but that the required actions depend on the particular circumstances and an assessment of what a reasonable and prudent person would do in the circumstances.

10Here, the appellant, knowing his friend had licence fines, sought to satisfy himself that the licence was valid. He looked at it sufficiently closely to verify that it had not expired - the licence shows an expiry date of August 5, 2020. He also noted that T.S.’s ACZ licence designation was indicated on it. Unfortunately, the fact that a driver’s licence is suspended does not appear on the face of what would otherwise reasonably appear to be a valid licence.

11The appellant candidly states that he learned subsequent to this incident that a person can go on a government website to check whether a driver has a suspended licence. The question is whether in these circumstances, where an owner satisfies himself by an actual inspection of the licence that the driver has a valid licence, it is incumbent upon an owner to take the extra step of searching for a Ministry of Transportation website that will verify that information. I find that it is not, and, based on the evidence before me at this hearing, I find that the appellant did what was reasonably required and exercised due diligence for the purposes of s. 50.2 (3)(c) of the HTA.

Issue 2: Will the impoundment result in exceptional hardship

12Under s. 50.2(3)(d) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of his vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.

13Section 10 of O. Reg. 631/98 (the Regulation) provides specific criteria that must be considered when determining the outcome of an appeal under this section.

14Under that Regulation, I must first consider whether there are reasonable alternatives available for the impounded vehicle.

15If there is no reasonable alternative to the impounded vehicle, then I may consider a threat to health or safety to a person as well as the following factors:

• financial or economic loss,

• loss of employment or employment opportunity, or

• loss of education or training.

16In order to meet the test of exceptional hardship, the above losses must:

• be immediate, significant and lasting,

• impact on a person ordinarily transported by the vehicle, and

• impact someone other than the suspended driver.

17The appellant lives in Webbwood, Ontario which is approximately 45 km west of Sudbury. At the time of the impoundment, he was visiting with family, and T.S., in Oshawa. He testified that up until April 2019, he had been receiving WSIB benefits as a result of an injury sustained at work. He had been off work for approximately two years. He was cleared by his doctors to return to work in April. The appellant characterized his work as part-time on-call work. He works as a longshoreman and also works for a general contractor based in Webbwood. His work as a longshoreman requires him to travel to various ports- Oshawa, Toronto or Hamilton for example. He has to drive his vehicle to the various his work sites for both the construction and longshoreman jobs.

18The appellant testified that between April and August 2019 he worked about 15 days per month, usually 12-hour days. He calculated that since August 12th, he has missed 180 hours of work. The general contracting company with whom he works had a job for him in Kirkland Lake which is approximately a one hour and 40-minute drive from Webbwood. This would have given him 120 hours of work. He also had a call for longshoreman work, which is dependant upon the timing of ships in port. This was 60 hours of work. On cross examination, he explained that there is little opportunity to recoup this loss of income by working extra shifts as a longshoreman after the impoundment given that he works in a union environment and with his lack of seniority those shifts are generally not available to him.

19Because he has just recently returned to work after being on a limited income for two years (WSIB benefits gave him approximately $19000 /year), he is in overdraft on his bank account and his credit card is close to his maximum. He describes himself as just ‘scraping by’. The one time that he has rented a vehicle, to attend an important medical appointment related to a change in his medications, his parents paid for it. On another occasion, to attend a medical evaluation, he was able to borrow a car from a relative.

20In addition to these two medical appointments, the appellant explained that he has two upcoming appointments- one with the WSIB in Scarborough on September 18th and one with a specialist to assess the nerve damage in his back in Courtice on September 25th. Without a vehicle, he does not know whether he will be able to attend these appointments. If he cannot make the specialist appointment, he has been told that he may not be seen until late November.

21The focus of the appellant’s evidence regarding exceptional hardship relates to the loss of employment. Based on the evidence, I do find that the appellant meets the first step of the test: there is no reasonable alternative to the impounded vehicle. He lives in a smaller community in northern Ontario. He requires his vehicle to drive to job sites located many kilometers away. Based on the documents provided by the Registrar, this is his only vehicle.

22The appellant was credible and forthright. He has lost employment because of his inability to get to his work sites. When asked on cross-examination what he has been able to do for transportation during the impoundment, he testified to only two occasions when he has had a vehicle available to him- when his parents paid for a one-day rental for him to attend a medical appointment and when he was able to borrow a car, also for a medical appointment.

23Finding that there is no reasonable alternative to the impounded vehicle and that he has suffered a loss of employment, I must also consider whether the loss is immediate, significant and lasting. I find that it is. The inability to respond to work opportunities has an immediate and lasting impact on the appellant. 180 hours is a significant amount of work. The appellant gets work as jobs with the general contractor or shifts as a longshoreman are available, hence the ‘on call’ nature of the work. The loss of employment, and corresponding financial loss, cannot be recouped by working extra shifts as might occur in a more regular work environment.

24As has been noted in prior Tribunal decisions, the evidence to establish exceptional hardship given the prescriptive language in the legislation must be compelling: the test is a strict one. Whether an appellant satisfies the test is dependant on the particular facts. On the facts before me, I find the appellant has satisfied the onus on him to establish, on a balance of probabilities, that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA.

ORDER

25After considering the evidence provided, pursuant to the Tribunal’s authority under s. 50.2(5) of the HTA, the Tribunal orders the Registrar to release the vehicle to the appellant.