File Number: 11898/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:
A.P.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jacqueline Castel
Appearances:
For the Appellant: [Appellant’s Son], Agent
For the Respondent: Sonia DeSantis, Agent
Heard by Teleconference on: April 4, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on April 4, 2019 to consider the appellant’s appeal of the 45-day impoundment of his 2006 AUDI, A63 (the “vehicle”). The vehicle was impounded on January 14, 2019 and released to the appellant approximately 7 or 8 days after the 45-day period of impoundment elapsed, upon payment of the impoundment fees. The appellant is requesting that the Tribunal make a finding that the impoundment should have been set aside and order the Registrar of Motor Vehicles (the “Registrar”) to reimburse him for the impoundment fees for the 45-day period.
2The appellant’s son, represented him at the hearing. The [appellant’s son] was also the suspended driver who was driving the vehicle at the time of the impoundment.
3The appellant purchased the vehicle three days before it was impounded. He purchased the vehicle to assist him in attending the hospital for medical appointments, tests and treatment associated with his recent diagnosis of lung cancer. The vehicle was, however, unfit to drive.
4Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person, who is driving a vehicle, is under suspension. The vehicle was impounded pursuant to this subsection of the Act.
5The appellant is appealing the impoundment on the grounds of due diligence and exceptional hardship.
ISSUES
6The issues to be determined are:
(i) Did the appellant exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence?
(ii) Did the impoundment result in exceptional hardship?
CONCLUSION
7On 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 HTA.
LAW AND ANALYSIS
8The owner of a vehicle that has been impounded, pursuant to s. 55.1(1) of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
9There 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
10In 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 he made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was impounded.
11According to the Extended Driver Record Search for Criminal Code Convictions, which the respondent introduced into evidence, the [appellant’s son]. has had his driver’s licence suspended on numerous occasions between 2016 and 2018 for various reasons, including failure to provide breath or blood sample, failure to complete a remedial program, driving without a licence or improper class of licence, operating a motor vehicle without insurance, driving while his licence was under suspension, and unpaid fines. The vehicle was impounded because the [appellant’s son’s] licence was under suspension for failure to complete a remedial program. There is also a condition that, upon reinstatement of his licence, the [appellant’s son] is only permitted to drive vehicles equipped with an ignition interlock device.
12The appellant testified that he was not aware that his son’s licence was under suspension. He acknowledged that he did not ask to see his son’s driver’s licence before allowing him to drive the vehicle or make any inquiries into the status of his licence. The appellant also testified that he was not aware of the condition that his son drive only vehicles equipped with an ignition interlock device, once his license is reinstated.
13The appellant assumed that his son had a valid licence but did nothing to verify the status of his licence. Simply relying on his son to be honest and forthright with him about his driving record does not constitute due diligence.
14Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 40.2(3)(c) of the Act.
Exceptional Hardship
15Section 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.
16The appellant testified that during the period of impoundment he borrowed a vehicle from his daughter and also relied on family members, friends and co-workers to drive him to medical appointments and to do errands. He also took UBER on a few occasions. On one or two occasions he stayed overnight at the home of a friend, who resides near the hospital, and walked to the hospital the following morning for his treatment. He did not miss any medical appointments during the period of impoundment. The appellant could not drive himself after chemotherapy treatments.
17The appellant testified that he collects CPP and also works as a private investigator. He has been on an unpaid medical leave of absence from his work for the last couple of months. He stated that he had to take out a loan, at an interest rate of 45 percent, to retrieve the vehicle from impoundment.
18The respondent introduced the Vehicle Identification Number (“VIN”) record, for the appellant’s vehicle, into evidence. According to the VIN, the vehicle was not fit to drive at the time of the impoundment and it remains unfit to drive. The respondent submitted that under the law the appellant cannot drive a vehicle that is classified as unfit to drive. As such, the appellant would not have been able to use this vehicle to get to and from medical appointments unless he was able to have it repaired and classified as fit to drive.
19I am sympathetic to the inconvenience that the impoundment created for the appellant, particularly given the other stresses in his life associated with his health. However, it is not clear that the appellant would have been able to use the vehicle during the period of impoundment given the “unfit to drive” classification. Furthermore, the appellant had several alternatives to the vehicle throughout the impoundment period. Specifically, he borrowed a vehicle from his daughter and relied on family members, friends, co-workers and UBER for transportation. He did not miss any medical appointments during the impoundment period.
20Since the appellant did not satisfy the test that there was no alternative to the impounded vehicle, I do not need to consider the other provisions of s. 10 of the regulation.
ORDER
21Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: April 5, 2019