Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1 of the Act.
Between:
E.F.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Marisa Victor, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: March 28, 2019
DECISION AND ORDER
Overview
1E.F. appeals the 45-day impoundment of her vehicle after it was driven by M.F., her son. On February 17, 2019, M.F. was stopped by police and it was discovered he was driving a vehicle that did not have an ignition interlock device installed, as required by a condition on his licence. The condition has been on M.F.’s licence since 2017.
2The appellant appeals on the grounds of due diligence and that the impoundment will cause her exceptional hardship.
3After considering the evidence, I confirm the impoundment.
PRELIMINARY ISSUE
BACKGROUND
4M.F. had an April 2005 conviction for failing or refusing to provide a breath sample. This resulted in the condition on his licence that he have an ignition interlock device installed (the prescribed condition). The prescribed condition was placed on his licence in 2017. The Highway Traffic Act (the Act) was amended on July 1, 2018 to allow for a 45-day impoundment should a driver be in violation of a prescribed condition.
5During the hearing, and in relation to the above the facts, I questioned whether the Act was being applied retroactively. Specifically, I asked for written submissions regarding whether the 45-day impoundment imposed by s. 55.1(1)(2) of the Highway Traffic Act captured criminal conviction penalties resulting in the requirement that an ignition interlock device be installed, when that requirement was imposed on a licence prior to the amendment of the Act on July 1, 2018.
6The appellant did not choose to provide submissions.
RESPONDENT’S SUBMISSIONS
7The respondent submits that the legislation is not retroactive but prospective. It applies to all persons who are subject to an ignition interlock condition and are in contravention of that condition after July 1, 2018. Prior to July 1, 2018 operating a vehicle without a required ignition interlock device was prohibited, though not subject to the 45-day impoundment. Violation of the condition could result in a Criminal Code charge. The legislation provided for transitional provisions so that an ignition interlock device condition on a licence imposed prior to July 1, 2018 continued after July 1, 2018.
8Further, the respondent submits that s. 55.1(1) does not specifically say that it only applies to people who had a prescribed condition imposed after the legislation was changed that allowed for vehicle impoundment. Therefore, the plain meaning of the Act is that it should apply to anyone who is subject to a prescribed condition, whether the prescribed condition was imposed before or after the change in legislation. It is not retroactive as the impoundment provision only applies to those in breach of the ignition interlock condition after July 1, 2018.
9Finally, the respondent states that even if the Act is retroactive, there is no “vested right” to drive a motor vehicle contrary to the prescribed condition. Therefore, the common law presumption against retroactivity does not apply.
ANALYSIS
10Although the ignition interlock condition was placed on M.F.’s licence in 2017, the event leading to the impoundment, namely the failure to drive a vehicle with an ignition interlock device installed, occurred in 2019, well after the changes to the Act on July 1, 2018.
11I agree with the respondent that the facts do not support an interpretation that the Act is being applied retroactively. The plain reading of the Act is that it applies to all those with a prescribed condition on their licence who are in violation of that condition after July 1, 2018. As the Act is not being applied retroactively, the principles against applying the law in such a way that it deprives a person of a “vested right” do not apply.
12I conclude that the impoundment was validly made pursuant to the Act.
ISSUES
13The issues on this appeal are:
a. Whether the appellant exercised due diligence in attempting to determine if M.F.’s driver’s licence had an ignition interlock device condition on the licence that prevented him from driving her vehicle; and
b. Whether the impoundment will result in exceptional hardship.
ISSUE 1: WHETHER THE APPELLANT EXERCISED DUE DILIGENCE
14Under s. 50.2(3)(c) of the Act, the owner of the motor vehicle can appeal an impoundment on the basis that they exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it impounded, was not then subject to the condition described in paragraph 2 of subsection 55.1 (1).
15Regulation 631/98 states that, for the purposes of paragraph 2 of subsection 55.1 (1) of the Act, a prescribed condition is a condition imposed under an ignition interlock conduct review program.
16In order to establish that due diligence was exercised within the meaning of s.50.2(3)(c) of the Act, the appellant must show that they have made all reasonable efforts to determine that the licence of the driver was not subject to an ignition interlock device condition at the time the vehicle was detained.
EVIDENCE
17The appellant testified that her son, M.F. was driving the vehicle when he failed to stop for an amber light. He was pulled over by the police and the vehicle was subsequently impounded.
18The appellant did not know her son had an ignition interlock stipulation on his licence. She agreed that her vehicle was not equipped with such a device.
19The appellant knew her son had waited a long time since his conviction to re-apply for his licence. She agreed that she had not looked at his driver’s licence either when he received it or on the day that he borrowed the vehicle and it was impounded. She did see afterwards that M.F.’s licence has the ignition interlock device condition printed on the licence in small writing.
20The respondent states that the appellant did not exercise due diligence. The appellant did not take any steps to determine the vehicle did not have a prescribed condition on it at any time, including the day of the impoundment.
ANALYSIS
21Although the appellant believed her son was able to drive her vehicle, there was no evidence that she took any active steps to confirm that that licence did not have a prescribed condition on it at the time she allowed M.F.to borrow her vehicle. She agreed that her vehicle was not equipped with an ignition interlock device.
22I find that the appellant has not proven that she exercised due diligence to establish whether M.F. had a licence without a prescribed condition at the time of the impoundment. Therefore, this ground of appeal must fail.
ISSUE 2: WHETHER THE IMPOUNDMENT WILL RESULT IN EXCEPTIONAL HARDSHIP
LAW
23Under s. 50.2(3)(d) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of her vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.
24Section 10 of O. Reg. 631/98 (the Regulation) provides specific criteria that must be considered when determining the outcome of an appeal under this section.
25Under that Regulation, I must first consider whether there are reasonable alternatives available for the impounded vehicle. This means that every reasonable option has been considered, including making arrangements to do without any motor vehicle during the impoundment period.
26If there is no reasonable alternative to the impounded vehicle, then I may consider a threat to health or safety to a person as well as also the following factors:
a. financial or economic loss,
b. loss of employment or employment opportunity, or
c. loss of education or training.
27In order to meet the test of exceptional hardship, the above losses must:
a. be immediate, significant and lasting,
b. impact on a person ordinarily transported by the vehicle, and
c. impact someone other than the suspended driver.
EVIDENCE
28The appellant testified that when she appealed the impoundment she did not know the definition of exceptional hardship. She states that she is 85 years old and has mobility issues. Groceries are not within walking distance. She has depended on friends to drive her as well as used taxis to get around. As a result of the impoundment, she has only gone where she has to go and has otherwise stayed home.
29She agreed that she has not missed any medical appointments, nor has she suffered any significant economic losses as a result of the impoundment.
30The respondent submitted that the appellant did not meet the test for exceptional hardship as she has access to alternative transportation during the impoundment period. The appellant used taxis and assistance from friends with vehicles. In the respondent’s submission, these alternatives mean that the appeal on the grounds of exceptional hardship is not available.
ANALYSIS
31In order to be successful on appeal on the ground of exceptional hardship, the appellant must demonstrate that there is no alternative to the impounded vehicle.
32The evidence shows that the appellant has access to taxis and transportation from friends during the impoundment period. Although she stated that the impoundment limited her movement, especially as walking is difficult for her, the evidence shows that she is able to go where she needed to go during the impoundment period. Unfortunately, I am not able to consider the inconvenience to the appellant or her friends under this ground of appeal. As she has alternative transportation available to her, an appeal on the grounds of exceptional hardship is unavailable.
ORDER
33The impoundment of the appellant’s motor vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: April 29, 2019