C.S. v. Registrar of Motor Vehicles, 2019 CanLII 37557

Date: 2019-04-03

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

Between:

C.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Theodore Crljenica

Appearances:

For the Appellant: Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference on: March 28, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A hearing was held on March 28, 2019 by teleconference, to consider the appeal of the appellant C.S. under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”) relating to the impoundment of the appellant’s motor vehicle.

2The appellant’s vehicle was impounded on February 25, 2019 on the grounds that the operator of the motor vehicle had a suspended licence. A Notice of Impoundment was issued for a period of 45 days. The Appellant’s Notice of Appeal is dated March 1, 2019.

3The appellant’s daughter M.S. is the primary driver of the impounded vehicle. M.S. loaned the vehicle to her friend J.P. J.P. allowed his friend B.C. to drive the vehicle. B.C.’s driver’s licence had been suspended as a result of a Criminal Code conviction. The appellant did not know that B.C. would be allowed to drive the vehicle nor did she know that B.C.’s licence had been suspended.

4In her Notice of Appeal, the appellant submits that she did not permit B.C. to drive the vehicle and therefore could not have known that she should have made inquiries about his driver’s licence. She also appeals on the grounds of exceptional hardship.

5For the reasons set out below, I confirm the impoundment.

ISSUES

6(a) Is the statutory test of due diligence satisfied on the basis that because the appellant did not know the B.C. would be driving the vehicle and therefore could not have known that she should have made inquiries about B.C.’s driver’s licence?

(b) Did the appellant establish exceptional hardship?

EVIDENCE & ANALYSIS

Did the appellant exercise due diligence?

7When a vehicle has been impounded under section 55.1 of the HTA the impound period is 45 days if there has been no previous impoundment in the last two years. This is the case here.

8The only evidence on behalf of the appellant was her own testimony and a note prepared by J.P. that was submitted into evidence.

9According to the appellant, her daughter M.S. is the primary driver of the impounded vehicle, a pick-up truck.

10The appellant was advised by M.S. that she, M.S., let her friend J.P. borrow the vehicle to carry snow removal equipment to various locations to do snow removal. The appellant testified that this was the first time M.S. lent the vehicle to J.P.

11B.C. was assisting J.P. with the snow removal. According to the note from J.P. that was submitted into evidence, at some point B.C. was sitting in the driver’s seat of the vehicle, warming up. J.P. entered the vehicle on the passenger side and allowed B.C. to drive. At the time B.C.’s licence was under suspension and as a result the police officer who stopped the vehicle had it impounded.

12The appellant testified that she did not know that B.C. would be allowed to drive the vehicle, nor did she know that his licence was suspended. As none of M.S., J.P. or B.C. testified there is no evidence as to whether M.S. knew that B.C. would be with J.P., that B.C. would drive or that B.C.’s licence was suspended

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 relevant provision for the analysis of due diligence is subsection 50.2(3)(c) which states:

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 it was detained in order to be impounded was not then under suspension;

14The appellant’s position is that as she did not know that B.C. would be driving the vehicle she cannot be expected to have ensured that B.C. had a valid driver’s licence.

15Unlicenced drivers are a risk to themselves and to other members of the public who use the roads. The legislation places a heavy onus on the owner of a motor vehicle to ensure that an unlicenced driver is not allowed to operate the vehicle on public roads. The appellant entrusted the vehicle to her daughter M.S. Unless she can show that M.S. exercised the due diligence that the legislation requires of the appellant, she bears the risks and consequences of the vehicle being impounded if it is driven by an unlicenced driver.

16There is no evidence before the tribunal that MS exercised due diligence to ensure that the vehicle was not driven by an unlicenced driver. Thus, it is my determination that the appellant has not met the due diligence requirements of section 50.2(3)(c) of the Act.

17Although I have sympathy for the situation in which the appellant finds herself, the societal benefit of making the roads safer justifies the obligations placed on her as the vehicle owner and as a result, the consequences she is left to bear.

Exceptional Hardship

18The appellant testified that her daughter M.S. is a single mother. Until recently M.S. lived with the appellant. She shares custody of her son with her son’s father, on a 50-50 basis, alternating every five days. Her son’s father lives five or six city blocks from the appellant’s home.

19M.S.’s son is in junior kindergarten. The school bus picks him up in the morning from, and drops him off at the end of school day at, the appellant’s home.

20When M.S.’s son is with his father, who does not drive, M.S. drives to the father’s home to transport their son to the appellant’s home in time for the school bus. At the end of school day the school bus returns him to the appellant’s home and M.S. drives him back to his father’s home. Prior to the impoundment M.S. used the vehicle that has been impounded to transport their son between his father’s home and the bus stop.

21The appellant owns a second vehicle, a Jeep. Since the impoundment the appellant has allowed M.S. to drive the Jeep. M.S. has been using the Jeep to transport her son to and from the home of her son’s father.

22M.S. has also been driving the appellant to work. She starts at 3:00 p.m. Her place of employment is four city blocks from her home. The appellant works until 10:00 p.m. As M.S.’s son is usually asleep at this time M.S. has not been able to pick up the appellant after work. However, the appellant has been able to get rides home from co-workers. She has not missed any work as a result of the impoundment.

23Sometime in March of this this year M.S. moved out of the appellant’s home and M.S. has had possession of the appellant’s Jeep. The school bus still picks her son up from, and drops him off at, the appellant’s home. Thus, M.S. drives her son to and from the school bus stop at the appellant’s home both when her son is with her and when he is with his father. M.S. continues to drive the appellant to work.

24It was also the appellant’s evidence that none of M.S., her son, or the appellant have missed any medical appointments and that 911 services are available in her community.

25Pursuant to section 10 of O. Reg. 631/98 when considering exceptional hardship, this Tribunal must first consider whether the appellant has established, on the balance of probabilities, that there is not available an alternative to the impounded vehicle.

26Based on the totality of the evidence it is my determination that an alternative to the impounded vehicle is available for use by the appellant and M.S., that alternative being the appellant’s Jeep. M.S. has been able to transport her son to and from his father’s home and to and from the school bus. Further, there is no evidence of a threat to the appellant’s health or safety or that of any person ordinarily transported in the impounded vehicle. None of the appellant, M.S. or her son have missed any medical appointments and if there is an emergency, 911 services are available in the community.

27The worst consequence of the impoundment is that the appellant has had to arrange rides with co-workers to get home from work. At most, this is an inconvenience, not exceptional hardship.

28In conclusion, I find that the appellant has not proven exceptional hardship pursuant to section 50.2 of the HTA and regulation 631/98.

ORDER

29For the reasons set out above I confirm the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.