Tribunal File Number: 12311/MVIA
An Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to s. 55.1 of the Act.
Between:
Sameer Ali
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Adjudicator: Zahra Dhanani
Appearances:
For the Appellant: Self Represented
For the Respondent: Sanjay Kapur
Place and Date of Hearing: Teleconference Hearing - October 2, 2019
REASONS FOR DECISION
OVERVIEW
1The appellant’s vehicle was impounded on August 23, 2019 because it was being operated by Martelle Anthony Francis (MAF) whose driver’s licence was under suspension.
2MAF had rented the car from the appellant’s rental car company: Relax Rental Car Inc. (Relax). The appellant owns the rental car that was impounded. The staff at Relax act on the appellant’s behalf.
3The appellant appeals the impoundment because he states that his staff exercised due diligence in trying to determine whether the driver had a valid licence when they rented MAF the car and also that the appellant will experience exceptional hardship.
ISSUES
4Has the appellant satisfied the Tribunal that he: a) exercised due diligence in trying to determine whether MAF’s driver’s licence was not under suspension before renting him the car and/or b) will experience exceptional hardship as a result of the impoundment.
CONCLUSION
5On the evidence before me, I find that the impoundment did not result in exceptional hardship. I also find that the appellant did not exercise due diligence in attempting to ascertain whether MAF’s driver’s licence was not under suspension. Therefore, the impoundment of the vehicle is confirmed.
LAW AND ANALYSIS
6Under the Highway Traffic Act (Act), a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose driver’s licence has been suspended.
7The grounds for appeal under which the Tribunal may order the Registrar release an impounded motor vehicle are set out in s. 50.2(3) of the Act:
(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.
8Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship has resulted from an impoundment. The burden of proving such hardship rests on the appellant.
9In this case, the appellant alleges that the impoundment resulted in his losing income and therefore resulted in exceptional hardship. He submitted that the cost of the impoundment also resulted in hardship.
10Financial and economic losses may be considered only 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 as a result of a loss by the suspended driver of the type set out in s.10(2)(b), (c) or (d).
11Subsection 10(4) states that in order to show that there was 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.”
12The test imposed by the law is clear and strict. The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle that could have mitigated any loss suffered by its impoundment.
13In this case the appellant’s car is one of several rental cars that he owns. The hardship he explained does not satisfy the criteria under the law to justify a finding of exceptional hardship. There was no evidence submitted by the appellant that there were no other alternatives to the impounded vehicle. Furthermore, the appellant did not use this vehicle to ordinarily transport himself for his personal needs.
14Based on the evidence the appellant had an alternative to the rental vehicle that was impounded and the economic loss he suffered will not be significant and lasting. The appellant testified that he runs a successful business and his business will continue
15The next issue is did the owner of the motor vehicle exercise due diligence in attempting to determine that the driver’s licence of the driver to whom he rented the car was not then under suspension?
16The Registrar submitted that there are four ways for a careful and prudent individual or company to determine if a driver had a valid Ontario driver licence. First, they may contact the Ontario Ministry of Transportation by telephone; second, they may access the website www.mto.gov.on.ca; third, they may attend personally to obtain a driver’s abstract at a local MTO Driver Licence Issuing Office; or fourth, they may attend at a Service Ontario Kiosk.
17This Tribunal has consistently interpreted due diligence to mean that the owner has taken all reasonable steps in the circumstances to ascertain whether the licence was under suspension.”
18The Registrar submitted that the appellant did not exercise due diligence because his staff did not check out the driving record/licence of the person to whom he rented the car.
19The appellant testified that he trains all of his staff to always check the driving licence of everyone who rents out their cars. He also testified that he thinks the agent did not check the licence this time because MAF had rented out a car from their company very recently and his licence checked out as legally authorized for driving. The appellant testified that MAF had rented cars from Relax several times before in the recent past.
20The Registrar provided evidence that MAF’s licence had been suspended since November 2018.
21The appellant stated that Relax had rented the car to MAF a few times in the period that his licence has been suspended. This exposes a bigger issue with how business is conducted at Relax and that due diligence is not exercised by his staff team. The appellant is responsible for the actions or lack of actions of his employees.
22As a result, I find that the appellant did not exercise due diligence in the renting of the car to MAF.
DECISION
22Pursuant to subsection 50.2 (5) of the Act, I confirm the impoundment.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: October 30, 2019