H.B. v. Registrar of Motor Vehicles, 2019 CanLII 29103

Date: 2019-02-01

File Number: 11774/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to section 55.1(3) of the Act

Between:

H.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: H.B., Self-represented

For the Respondent: Steve Grootenboer, Agent

Heard by Teleconference on: January 30, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on January 30, 2019 to consider the appellant’s appeal of the 45-day impoundment of her 2005 Subaru, LOI (the “vehicle”). The vehicle was impounded on November 24, 2018 because it was being driven by a person whose driver’s licence was under suspension. The vehicle was released to the appellant on January 9, 2019, one day after it was eligible for release.

ISSUES

2The issues to be determined are:

(i) Did the appellant exercise due diligence in attempting to determine that the driver’s licence of the driver of the vehicle, at the time of the impoundment, was not then under suspension?

(ii) Did the impoundment result in exceptional hardship?

CONCLUSION

3On the evidence before me at the hearing, I find that the appellant did not exercise due diligence and that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3) (c) and (d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”).

LAW AND ANALYSIS

4The owner of a vehicle that has been impounded, pursuant to s. 55.1 of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

5There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the grounds of due diligence and exceptional hardship.

Due Diligence

6In order to establish that the appellant exercised due diligence within the meaning of section 50.2(3)(c) of the HTA, the appellant must prove that she made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was detained.

7The appellant testified that the suspended driver, of the vehicle at the time of the impoundment, has been a friend for many years. She also testified that he owns his own car, and she has witnessed him driving numerous times over the years. She stated that she had no idea that his licence was under suspension, when she allowed him to drive her vehicle. The appellant admitted, on cross-examination, that she was aware that the driver had been charged with driving while impaired in the past.

8The appellant stated that on the date in question, she saw a driver’s licence in the driver’s wallet when she was looking for his credit card, at his request. On cross-examination, she admitted that she did not inspect the expiry date on the licence or contact the Ministry of Transportation (“MTO”) to verify the status of the driver’s licence. She had no response to the respondent’s evidence that the driver surrendered his licence to the MTO in June 2018.

9Based on the evidence before me, I find that the appellant did not take all reasonable efforts to determine that the driver’s licence of the driver was not under suspension. Due diligence, within the meaning of section 50.2(3)(c) of the Act, requires doing more than making assumptions about the status of the driver’s licence; it would also require, at very least, verifying the expiry date on the driver’s licence.

Exceptional Hardship

10Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.

11The appellant gave evidence that she resides in a rural area where there is no public transportation nearby. She testified that she requires a vehicle to get to and from her part-time jobs at a dental office and restaurant, as well as her cleaning job. While her vehicle was impounded, she used a taxi to get to work on one occasion, and her mother drove her on other occasions. This was a burden for her mother, who consequently arrived at her own workplace late several times. The appellant also rented a vehicle for a few days as well, but this proved to be very expensive. Ultimately, she purchased a second vehicle from a friend, but the windshield wipers did not work and she could not use the vehicle until she had them replaced at an additional expense. On yet another occasion, she was unable to start this vehicle.

The appellant stated that she missed 1.5 days of work during the period of impoundment.

12The appellant testified that she finds it most unfair that the impoundment has created tremendous inconvenience and financial strains for her and her mother, yet there have been no consequences for the suspended driver. In response to a question, she acknowledged that the driver would probably assist her with the impoundment fees but she has been too upset to speak to him since the date of the impoundment.

13There is no doubt that the appellant and her mother have been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship. To establish exceptional hardship, the appellant must prove, first of all, that there is no alternative to the impounded vehicle, and she has not done so.

14The appellant gave evidence that she has been very industrious in finding alternatives to the impounded vehicle including taxis, a rental vehicle, relying on her mother to drive her to and from work and ultimately purchasing a second vehicle, albeit one which required some repairs.

15I am sympathetic to the inconvenience and financial difficulties in which the appellant found herself because of the impoundment. However, her testimony does not support a finding of exceptional hardship. For this reason, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER

16Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.