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:
T.S.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
PANEL: Joanne E. Foot, Member
APPEARANCES:
For the Appellant: Nevethanam Thavaneswaran, Representative
For the Respondent: Sanjay Kapur, Agent
By Teleconference: April 23, 2019
OVERVIEW
1A teleconference hearing was held on April 23, 2019 to consider the appellant’s appeal of the 45-day impoundment of his 2013 Mazda (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The vehicle was impounded on March 22, 2019.
2The appellant is a 60-year-old widower who supports his two adult children, a daughter and a son. The appellant did not appear at the hearing but was represented by his son, N.T.
3The appellant’s son, N.T., borrowed his father’s vehicle to go out with friends. They went to a bar and later that evening, Mr. T. believed himself too intoxicated to drive. His friend S.S. volunteered to drive. Mr. S’s driver’s licence was then under suspension. After leaving the bar, the vehicle was stopped by the police and the appellant’s vehicle was impounded for 45 days.
4The appellant appealed the impoundment to the Tribunal on the basis that the owner of the vehicle exercised due diligence in attempting to determine that the licence of the driver was not under suspension and that the impoundment will result in exceptional hardship to the appellant.
ISSUES
5The two issues to be addressed in this appeal are whether:
a. 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 was not then under suspension; and
b. the impoundment of the vehicle will result in exceptional hardship.
Result
6I find that the appellant did not exercise due diligence in attempting to determine if the driver’s licence of the driver was not then under suspension, and the appellant has not proven the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act and s. 10 of the Regulation.
LAW AND ANALYSIS
7The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the Act. Here, the appellant relies on clause (c), that the owner exercised due diligence in attempting to determine that the licence of the driver was not under suspension, and clause (d), that the impoundment of the vehicle will result resulted in exceptional hardship. If I find that either of the grounds of appeal has been satisfied, I may, pursuant to s. 50.2(5) of the Act, order the Registrar to release the motor vehicle.
8The facts of the impoundment are not in dispute. After the appellant arrived home from work, Mr. T. indicated to his father that he wished to borrow the vehicle to go out with friends. The appellant agreed to this request with very little, if any, discussion, as Mr. T. borrows his father’s vehicle on a regular basis.
9Mr. T. met his friends and went out to a bar. He decided, owing to the amount of alcohol he had consumed, that he should not drive home. It was arranged that Mr. S. would drive the vehicle. Mr. T. testified that he knew Mr. S. had not been drinking. On the way home, the vehicle was pulled over by the OPP, following which the vehicle was impounded as Mr. S’s driver’s licence had been suspended.
10Under the Act, where a police officer is satisfied that a person was driving while his or her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the Act sets out the scope of the authority, the impound period and other requirements and obligations. The impoundment period is 45 days if there has been no previous impoundment in the last two years.
11The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in s. 50.2(3) of the Act.
12Following 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.
Due Diligence
13Section 50.2(3)(c) is reproduced below:
(c) …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 or subject to the condition described in paragraph 2 of s 55.1 (1);
14In order to establish the due diligence ground of appeal, a number of separate elements must be established. If any one of these elements is not established, this ground of appeal is not available.
15Firstly, it must be established that the owner of the impounded vehicle has exercised the necessary due diligence. Secondly, and related to this point, it must be established that the owner exercised due diligence in relation to the “driver’s licence of the driver of the motor vehicle at the time it was detained”. It is agreed that the owner of the impounded vehicle is the appellant and the driver of the vehicle at the time it was impounded was Mr. S.
16Mr. T. testified that his discussion with his father – the owner of the vehicle - about borrowing the vehicle that evening was minimal and confirmed that there was no mention of Mr. S. driving the car. This is confirmed in the Notice of Appeal where it is stated that “I was under the impression that my son, who does have his licence, was going to be the driver. I had no choice in the decision that occurred that night.” Section 50.2(2)(c) requires that it be the owner of the vehicle that exercises the due diligence. The evidence confirms that the appellant – the owner – did not take any steps to check the driver’s licence of Mr. S. and, in fact, would have been unable to do so as his expectation was that his son would be driving the vehicle.
17Mr. T. testified that his father had checked to ensure that Mr. T’s driver’s licence was valid at some point in the months prior to the impoundment of the vehicle. This action on the part of the appellant does not satisfy the clear wording of s. 50.2(2)(c) which requires that the due diligence be made in respect of the driver of the motor vehicle at the time it is detained, that is, Mr. S.
18Mr. T. urged consideration of the fact that neither he nor his father was aware of the licence suspension of Mr. S. Even if I were to accept this evidence at face value, this belief alone would not constitute due diligence. Due diligence requires that reasonable efforts be made to determine that the driver’s licence of the driver was not under suspension. I heard no evidence that Mr. T. checked his friend’s licence or took any other step or made any enquiry in this connection.
19Given that the appellant did not conduct any due diligence in respect of Mr. S., the driver of the vehicle at the time of impoundment, this ground of appeal is not available to the appellant.
Exceptional Hardship
20Section 50.2(3)(d) states provides that a ground of appeal is “that the impoundment will result in exceptional hardship.”
21Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(3)(a) of the Regulation, is that there must be no alternative to the impounded vehicle. Section 10(4) of the Regulation states that in order to show that there is no alternative to the impounded vehicle:
[T]he owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
22Mr. T. testified that the family has been able to “make do” without the impounded vehicle. He also confirmed that the family has another vehicle that Mr. T. uses to drive his father to work early each morning. He then drives himself to work. The appellant’s daughter appears to be most affected by having only one car in the family. She is a full‑time student and now needs to take three different public transit rides to get to school each day. This takes more time, is more expensive and she finds it onerous. On another occasion, the family rented a car when the existing car required repair. Since 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.
23I accept that the impoundment of the vehicle has caused inconvenience, stress and financial consequences for the entire family. However, it is clear that each member of the family has employed alternative methods of transportation to attend work and school and to tend to their daily lives. The use by the appellant and his family of various alternative means of transportation during the impoundment period means that the “exceptional hardship” ground of appeal under s. 50.2(3)(d) of the Act is not available. Accordingly, I confirm the impoundment.
CONCLUSION
24For the reasons set out above, pursuant to s. 50.2(5) of the Act, 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.
LICENCE APPEAL TRIBUNAL
____________________
Joanne E. Foot, Member
Released: May 22, 2019