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Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2019-12-03

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

James Vanderburg Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Patricia Conway, Member

Appearances: For the Appellant: James Vanderburg For the Respondent: Sonia DeSantis Agent

Court Reporter: Michelle Stone

Place and date of hearing: Teleconference, November 6, 2019

REASONS FOR DECISION AND ORDER:

Overview

1The appellant is the owner of a vehicle with plate CAFB 548. He was stopped by police while driving his vehicle on October 14, 2019 and told that he was driving while his licence was suspended. The vehicle was impounded. The appellant appealed to the LAT on three grounds from that impoundment by Notice of Appeal dated October 15, 2019.

ISSUES IN DISPUTE

2The appellant alleges that at the time of the impoundment,

a. His licence was not suspended;

b. He had exercised due diligence to determine whether his licence was suspended;

c. He is suffering exceptional hardship arising from the impoundment.

RESULT

3For the reasons set out below, I confirm the impoundment of vehicle

LAW

4Under the Highway Traffic Act, 2002 c. H. 8 (the Act) 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 Act 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.

5Subsection 50.2(3) of the Act 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 b, c, and d of subsection 50.2(3), which state:

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:

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…;

d. that the impoundment will result in exceptional hardship.

6 Section 10 of Ontario Regulation 631/98 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 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. “

7If the appellant establishes that there is no alternative to the impounded vehicle then (and only then) I must go on to a further consideration: whether the impoundment of the vehicle will result in exceptional hardship. The Regulation, s. 10 enumerates several ways in which exceptional hardship can be established.

8The Regulation states that the Tribunal may not consider financial or employment loss if it is suffered by the person who was driving the vehicle at the time of the impoundment.

EVIDENCE AND ANALYSIS

Was the appellant’s licence suspended at the time the vehicle was detained:

9Mr. Vanderburg testified that he had no knowledge that his licence had been suspended in Ontario; however, after seeing the Notice of Suspension dated September 27 tendered in evidence by Ms. DeSantis and viewing an abstract of his driving record also tendered in evidence, showing that his licence was suspended on August 24, 2019, Mr. Vanderburg agreed that his licence was indeed suspended at the time his vehicle was detained on October 14, 2019. This ground of appeal must fail, therefore. I believe Mr. Vanderburg’s testimony that he did not know that his driver’s licence was suspended, but the Act does not make lack of knowledge a basis for appeal.

Did the appellant exercise due diligence in attempting to determine that his driver’s licence was not under suspension?

10The appellant testified that he was involved in a minor collision in New York State on July 16, 2019. Police charged him with three offences, including driving under the influence (DUI). He retained an American lawyer and following his advice, pleaded guilty to a misdemeanor DUI on August 14, 2019. His driving privileges in New York were suspended for three months. The lawyer advised him that the conviction might be picked up in Ontario because there is a reciprocal agreement between Canada and the United States regarding such matters. The lawyer advised him to check the status of his licence in Ontario. The appellant tendered in evidence a letter from the lawyer confirming this. The letter stated that the lawyer told the appellant that he should check every couple of weeks.

11Mr. Vanderburg testified that he checked on August 22, 2019, obtaining an extended driver record search which indicated that he was licensed. The appellant also testified that he received his renewed driver’s licence dated July 23, 2019 at or about the same time. He was satisfied on this basis that he could drive in Ontario and he did so. The appellant noted that his American lawyer told him to continue driving if it appeared that his licence was in place in Ontario.

12Ms. DeSantis tendered in evidence a Notice of Suspension of the appellant’s licence dated September 27, 2019. She stated that this Notice would have been mailed to the appellant on its date. The appellant acknowledged that he received a registered letter from the Ministry of Transportation at or about that time. However, he put it in a pocket of his clothing without opening it. The clothing went through the wash and was illegible when he retrieved it. He wrote to the Ministry asking that the document be sent to him again but did not get a reply.

13Ms. DeSantis submitted that to satisfy paragraph 50.2(3)(c) of the Act, due diligence must be exercised on the day the vehicle was detained to be impounded. I do not agree that the paragraph requires this. I do agree with her that the appellant has not demonstrated that he used due diligence in determining the status of his licence in Ontario. He testified that he searched online twice, the last time on August 23, 2019. The letter from his American lawyer states that the appellant was advised to check every couple of weeks. He did not do this. In addition, he knew that he had received a registered letter from the Ministry of Transportation. If he had been exercising due diligence, he would have contacted the Ministry by telephone to ascertain the contents of this registered letter. Alternatively, he could have carried out another online search of his driving record He did not, despite being on notice that there is a reciprocal agreement in place and that he should check the status of his driver’s licence periodically. If he were exercising due diligence, I would expect him to continue checking at least until the end of the 3-month suspension period. I find that the appeal fails on this ground.

Will the impoundment of the vehicle result in exceptional hardship

14Mr. Vanderburg is a real estate agent. He testified that he needs his vehicle to meet with his clients and drive with them to view various houses that may be of interest to them. He acknowledged that he cannot himself drive because his licence is suspended, but he does have a retired neighbour whom he could pay to drive him. Mr. Vanderburg testified that he can and does ride his bicycle to meet with his clients, but that it is unseemly and impractical to ride his bicycle to more than one site and that most clients want to view more than one house before making a decision. He testified that he has no family members with cars. He has considered Uber but believes that it is impractical. He did not explain why. He can take the bus to one site but cannot feasibly follow his clients by public transport to several different locations. He acknowledged that he has not considered renting a car.

15I agree with the appellant that it is very awkward for him to carry on his business without a vehicle, but it is evident that he has not investigated all options, most obviously renting a vehicle which he could pay his retired neighbour to drive. I am therefore not satisfied that the appellant has established that there is no alternative to the impounded vehicle. This finding is a prerequisite to any further consideration of the exceptional hardship ground.

16I also note that where as here the alleged financial or employment loss is suffered by the suspended driver, that person’s hardship resulting from the impoundment cannot be considered. See paragraph 8, above.