Licence Appeal Tribunal
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:
Lori Matias
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jennifer Friedland, Member
Appearances:
For the Appellant: Lori Matias, Appellant
For the Respondent: Nora Challis, Agent
Place and date of hearing: By teleconference, September 12, 2019
REASONS FOR DECISION AND ORDER
A. Overview
1The appellant appeals the impoundment of her 2007 Ford Fusion (the “vehicle”) which was detained and impounded on July 28, 2019 as a result of being driven by a person whose licence was suspended.
2The appellant relies on the following two grounds of appeal pursuant to s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”):
50.2(3) (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 subject to the condition described in paragraph 2 of subsection 55.1 (1); and
50.2(3) (d) that the impoundment will result in exceptional hardship
3Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant fails on the issue of due diligence but succeeds on the issue of exceptional hardship. The vehicle is therefore ordered released.
B. EVIDENCE & ANALYSIS
Background
4The appellant is a 48-year old woman who suffers from terminal lung disease. She is awaiting a double lung transplant. A note from her doctor confirms her disease. She is on oxygen and medication.
5The person who was driving the appellant’s vehicle when it was detained and then impounded was JH, an acquaintance of the appellant’s for over 20 years.
6On the day in question, the appellant was not feeling well and JH offered to go to the drug store for her to pick up some gravol. The appellant loaned JH her car to do this. JH was then stopped by the police and the car detained on the way to the drug store.
Issue #1 – Whether the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence was not then under suspension.
7According to the driving record of JH submitted by the Registrar, JH’s licence was suspended in 2016 for unpaid fines; was suspended again following an impaired driving conviction on June 15, 2017; and continued to be suspended as of June 15, 2018 for failing to take a remedial program.
8With respect to whether the appellant knew that JH’s licence had been suspended, the appellant testified that JH had, on an earlier unspecified occasion, told the appellant that her licence had been suspended for unpaid fines. However, according to the appellant, JH later told her that it had been reinstated and that her parents had paid her fines. The appellant testified that she believed this because she understood JH’s parents to be wealthy and thought it was something they would do.
9The appellant testified that it did not occur to her to ask to see JH’s licence on the day that JH took her car to obtain the gravol for her, as JH had already said that her licence was now valid and she relied on this. She did not know that there was an online process for checking the status of a driver’s licence.
10The appellant stated that she only found out after the impoundment that JH was actually an alcoholic and was in fact now in treatment. She explained that JH must have been a “functioning alcoholic” as she was not aware of this side of her and did not know that JH had an impaired driving offence on her record. She acknowledged in cross examination that JH may have been embarrassed to tell her the truth.
11The appellant submitted a letter from JH in which JH acknowledged that she lied to the appellant when she told her that she had a valid driver’s licence.
Analysis on the issue of due diligence
12The due diligence ground of appeal requires the appellant to prove, on a balance of probabilities, that she “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…”
13As to what constitutes “due diligence,” the standard was considered by the Supreme Court of Canada in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove that she took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.
14In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held that passivity should not be confused with diligence, rather “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.”
15Under the Highway Traffic Acct, one of the multiple obligations imposed upon the owner of a motor vehicle is to ensure that it is not driven by those who do not have a valid driver’s licence.
The position of the parties
16The appellant contends that it is enough to have been told by JH that JH’s licence was now valid. The appellant asks that this be considered sufficiently reasonable in the circumstances given JH’s honesty in previously telling her that her licence was suspended for unpaid fines. The appellant asks (rhetorically) ‘why would she tell me at one point that her licence was suspended, and not on this occasion?’
17The respondent on the other hand submits that due diligence requires the appellant to have asked to see JH’s actual driver’s licence, and then to have run an online background check on it to confirm that it was not then under suspension. The Registrar explained that this process is available online for a $2 fee and provides immediate results.
Conclusion on the issue of due diligence
18In my view, due diligence lies somewhere in between the parties’ positions in the circumstances of this case. I do not accept that a person is required to conduct an online search in every case to prove due diligence. Assuming the resource is reliable, it would in all cases show that the licence was suspended, the car would not be loaned out, and this ground of appeal would never arise. I find that due diligence must mean something less than this ‘standard of perfection.’
19That said, in circumstances such as here, where the owner is aware that the driver had a suspension in the past, I have no hesitation in finding that it would be reasonable, at a minimum, to ask to see the person’s driver’s licence to confirm its validity. The appellant did not take even this minimal step. Given this, it is unnecessary for me to consider whether that step alone might have met the standard of due diligence in the circumstances of this case. On the facts before me, the standard is not met.
Issue #2 – Whether the impoundment will result in exceptional hardship
20The appellant has terminal lung disease and requires oxygen. Her disease is confirmed by a doctor’s note. The appellant testified that she could not attend her day-day-activities without her car, including shopping for food. She explained that she was unable to take a bus because she could not manage it with her oxygen tank. She also could not afford a taxi or uber as she was on ODSP. In her Notice of Appeal she noted that she had not left the house since the impoundment. At the hearing she testified that she had been eating only what was still in her cupboard since the impoundment, such as canned tuna.
21With respect to meeting her medical needs during the period of the impoundment, the appellant acknowledged that the impoundment did not interfere with her medication regime. However, there were two medical appointments that she was supposed to have booked during the period of the impoundment but could not, due to not having a vehicle. One of these was in Owen Sound and the other was in Toronto. She has now scheduled these for the following month.
22In terms of getting help from others during the impoundment, the appellant stated that she could not get help from her family. She explained that while her son lived with her and had a vehicle, he worked every day between 7 a.m. and 9 p.m. and took his car with him. Her daughter, who also lived in her house, did not drive at all. The appellant’s other two children lived 20 and 45 minutes away respectively but the appellant explained that she could not rely on them for help due to a strained relationship. She also testified that she could not ask her parents as they were elderly, were not in a position to help, and never loaned their car to anyone.
Analysis on the issue of exceptional hardship
23Section 10 of Regulation 631/98 sets out the requirements that must be met in order to show that the impoundment will result in exceptional hardship.
24Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available” Section 10 (4) then sets out what an appellant must show in order to meet this initial prong of the test:
10 (4) In order to show that no alternative to the impounded motor vehicle is available… 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.
25If this initial step of the test for exceptional hardship is met, the appellant must then show, on a balance of probabilities, that 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. O. Reg. 456/10, s. 3.
26I am satisfied that the appellant did not have an alternative to the impounded vehicle during the period of the impoundment. She testified that she could not afford an uber or taxi, given that she was on ODSP. She considered the option of obtaining assistance from her family but was unable to do so given, in the one case, that her son worked all day and had the car with him; and in the case of her other sons, that she had too strained a relationship with them to obtain their assistance. Her daughter, meanwhile, was on Ontario Works, did not drive, and, the evidence was, did not help her mother at all, including with the groceries. Meanwhile, the appellant was unable to travel by bus, as she was on oxygen and found it too difficult to travel by bus with her oxygen tank.
27The Registrar submits that the appellant did not consider “every reasonable option” because she could have, but did not, contact ODSP to find out whether she could obtain some transportation assistance through ODSP. However, I have no basis to conclude that this was in fact a “reasonable option.” The Registrar did not itself submit any evidence as to the availability of any such support through ODSP. Moreover, I accept the appellant’s statement that this option did not occur to her.
28I am further satisfied that the impoundment has resulted in a threat to the appellant’s health and safety. The evidence of the appellant, including as stated on her Notice of Appeal, was that she had not left her house since the impoundment and as a result of not having a car, she could not schedule at least two medical appointments that were supposed to have taken place that month. Although there was little to no evidence on the nature of the Owen Sound appointment, the evidence regarding the other was that it was at Toronto General Hospital and was for pain management.
29The Registrar suggests that the appellant ought to have looked into scheduling her Toronto medical appointment via video. The Registrar’s submission was based on the appellant’s testimony in cross-examination that she had at one time had a medical appointment by video at a local clinic. Again, however, I do not accept that this was an option within the appellant’s power to pursue or arrange. Moreover, on the evidence available at this hearing, the appellant would not have been able to get to a local appointment without her car in any event.
30In my view, in the context of a person suffering from terminal lung disease, it is reasonable to conclude that being unable to schedule a medical appointment, poses at least some threat to that person’s health, even when the appointment is subsequently made for a later date. I note that the Regulation does not impose a requirement as to the extent of the threat that must exist to a person’s health or safety as a result of the impoundment. The Registrar submitted that the impact has to be “immediate, significant and lasting” but that is only the test under s.10(3) in relation to a claim for exceptional hardship as a result of financial or economic loss, loss of employment, or loss of education. It is not a requirement for a finding that the impoundment will result in a threat to the health or safety of a person ordinarily transported by the motor vehicle.
Conclusion on the issue of exceptional hardship
31I am satisfied that the appellant did not have an alternative to her impounded vehicle during the period of the impoundment as she considered but was unable to obtain help from her family and had no other reasonable alternatives available to her. As a result, she has been unable to obtain groceries during the period of the impoundment and has been unable to schedule medical appointments, including one in Toronto for pain management. I find that not being able to obtain groceries and not being able to attend medical appointments, in the context of being a person with terminal lung disease, are both factors which pose at least some threat to the appellant’s health. I therefore find that she meets the test of exceptional hardship.
C. ORDER:
32Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant’s motor vehicle.
Licence Appeal Tribunal
Jennifer Friedland, Member
Released: September 24, 2019```