D.H. v. Registrar of Motor Vehicles, 2019 CanLII 32261

Date: 2019-03-15

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:

D.H.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: D.H., Appellant

For the Respondent: Stella Velocci, Agent

Heard by teleconference on: March 1, 2019

REASONS FOR DECISION AND ORDER

Overview

1A hearing was held on March 1, 2019, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA").

2The Appellant's vehicle was impounded on December 25, 2018. The Appellant's son, R.S. who lives with the Appellant, drove her vehicle without her permission or knowledge. R.S.'s driving privilege has been suspended since October 2008 for failing to complete remedial program after a criminal code conviction. On the day in question, R.S. was pulled over by the police, which resulted in the impoundment of the Appellant's vehicle.

3The Appellant submitted that she has exercised due diligence to prevent her son from using her vehicle, and that the impoundment resulted in exceptional hardship. The Appellant has since retrieved her vehicle by borrowing money from family members.

4For the reasons set out below, I confirm the impoundment.

ISSUES

5The issue under the appeal are as follow:

a) Whether the Appellant 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; and

b) Whether the impoundment resulted in exceptional hardship?

EVIDENCE

6The Appellant gave evidence at the hearing with respect to the events leading up to the impoundment and the hardship it has caused on her.

7The Appellant testified that on December 25, 2018, she was busy as her family was having a Christmas Dinner. After the dinner was done, the Appellant had to clean the kitchen. Once she finished cleaning up, the Appellant sat down to relax, assuming that her son was in his bedroom. Then the Appellant received a phone call from her son saying he had been pulled over. The Appellant went to the police station in a neighbouring First Nation and was advised that her vehicle was being impounded. The police officers did not tell the Appellant for how long her vehicle would be impounded nor did they inform her of her right to appeal the impoundment.

8On the following day, the Appellant went to the office of the Tribal police in her First Nation and spoke to the chief of police. The Tribal chief of police advised the Appellant about the duration of the impoundment and the process for appealing the impoundment to the Tribunal.

9The Appellant works as a personal support worker to assist the elders living in her First Nation community. Her job requires her to drive to various parts of her community where there is no public transportation system. Besides, there is a shortage of personal support workers in her First Nation. As such the Appellant travels on average 150 km a week to assist her clients. Not having a vehicle would not only mean that the Appellant could not work and thus would have no income, it would also mean that the elders in her community would not get the support they need. The Appellant had no choice but to borrow a vehicle from a family member. She also borrowed money in order to retrieve her vehicle as soon as the 45 days impoundment expired on February 8, 2019.

10The Appellant testified that she was aware that her son's driving privilege has been under suspension and did not allow her son to drive her vehicle. However, the Appellant also conceded that her son would sometimes take her vehicle without her permission. The Appellant said she suspected that her son had taken her vehicle when she was sound asleep because on the following morning, she would notice that the vehicle was parked in a different place from its usual parking spot.

11Since the impoundment, the Appellant has lectured her son about the problems he had created for her. Instead of leaving the car key on a shelf in the kitchen, the Appellant has also resorted to keeping the car key with her while sleeping.

LAW

12Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

13Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraphs (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,

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 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); or

d) that the impoundment will result in exceptional hardship.

14Section 10 of O. Reg. 631/98 (the "Regulation") is very specific and 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.

15Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may not consider whether the impoundment will result in inconvenience to any person.

16The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

17Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

ANALYSIS

18Dealing first with the issue of due diligence, unfortunately while the Appellant did what she could to prevent her son from accessing her vehicle, her good faith attempt does not satisfy the ground of appeal as set out in the Act. She was aware that her son's licence was under suspension, and she was also aware that her son had, on occasion, taken her vehicle without her permission.

19With respect to the issue of exceptional hardship, there is no question that the impoundment has affected the Appellant financially. The Appellant has to borrow money in order to retrieve her vehicle, which she needs to keep her job and to serve the elders in her First Nation community. The Appellant's son is on social assistance and is not in a position to help the Appellant repay her debt to their family member. The Appellant thus has to bear the entire financial burden for something that she did not do.

20The Appellant talks about the stress that the impoundment has put her under, and the various adjustments she had to make to try to repay the financial debt incurred.

21I am sympathetic to the circumstances faced by the Appellant which led to the impoundment of her vehicle. However, when a police officer is satisfied that a person is driving while suspended, the officer is required to detain and impound the vehicle.

22While I appreciate that the Appellant has limited means to pay for the cost associated with the impoundment, the evidence confirms the Appellant did have an alternative to the impounded vehicle, which was made available to her by her family member.

23Given that there is an alternative to the impounded vehicle available, the Appellant has not, in my view, established that she will suffer exceptional hardship as the term is defined under the Act, and on that basis I also cannot consider the financial loss that may follow as a result of the impoundment.

ORDER

24For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant's motor vehicle.