File Number: 12131/MVIA
Appeal under subsection 50.2 of the Highway Traffic Act (Act), R.S.O. 1990, c. H.8 from an Impoundment pursuant to section 55.1 of the Act
Between:
Joyce Adu-Kwarteng
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Zahra Dhanani
Appearances:
For the Appellant: Joyce Adu-Kwarteng, Self-Represented
For the Respondent: Nora Challis, Agent
Place and Date of Hearing: By Teleconference June 25, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on June 24, 2019 to consider the appellant’s appeal of the 45-day impoundment of her vehicle. The vehicle was impounded on May 27, 2019 and was to be released to the appellant on July 11, 2019.
2The vehicle was impounded because the appellant had lent her car to her daughter whose licence was suspended at the time. The appellant submits that she did not know that her daughter’s licence was suspended.
3The appellant appeals the Registrar’s impoundment of her car on the grounds of exceptional hardship and that she exercised due diligence to ascertain whether her daughter’s licence was not suspended on the night that she drove the vehicle and it was impounded.
ISSUES:
4The issues to be determined are: (a) did the appellant exercise due diligence to ascertain whether her daughter had a licence that was not suspended on the night that the car was impounded; and (b) whether the impoundment will result in exceptional hardship to the appellant.
CONCLUSION:
5I find that the appellant exercised due diligence in attempting to ascertain whether the driver to whom she lent her car was not under suspension. I also find that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
LAW AND ANALYSIS:
6The owner of a vehicle that has been impounded under s. 55.1 may appeal the impoundment pursuant to s. 50.2 of the Act.
7The Tribunal on the appeal may, pursuant to s. 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to s. 50.2(8), the decision of the Tribunal is final and binding.
8The grounds for appeal relied on in this case are set out in s. 50.2(3) of the Act:
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 to be impounded was not then under suspension; or
d) That the impoundment will result in exceptional hardship.
9The appellant must prove the grounds for appeal on a balance of probabilities.
10Section 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. The burden of proving such hardship rests on the appellant.
11Financial and economic losses may be considered only if all of the criteria listed in s.10(3) of the Regulation are met:
(a) No alternative to the impounded motor vehicle is available;
(b) The loss will be immediate, significant and lasting;
(c) The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) The impact of the loss
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
(ii) will not be as a result of a loss by the suspended driver of the type set out in s. 10(2)(b), (c) or (d).
12Subsection 10(4) states that in order to show that there was no alternative to the impounded vehicle, the 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.”
13I do not conduct an in-depth analysis here of exceptional hardship because I have made a finding that the appellant has met the appeal on the grounds of due diligence.
14I find, however, that the appellant did not meet the ground of exceptional hardship. In short, the appellant lives in Laval, Quebec and works in Montreal. Laval and Montreal are connected by a public transit network. The two cities are close in distance, comparable to the distance between Oakville and Toronto. The appellant also has other alternatives available to her including taking a taxi or other car sharing services.
15The test imposed by the law is clear and strict. The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle that could have mitigated any loss suffered by its impoundment. In this case, the appellant has admitted that she was able to take transit and has friends who help her get around if needed.
16Even were she to have exhausted all options to secure an alternative to the impounded vehicle, she has not shown that the 45-day impoundment is the cause of an immediate, significant or lasting loss. The difficult financial circumstances in which Joyce Adu-Kwarteng found herself in following the impoundment appear to have existed before rather than directly as a result of the impoundment. I therefore could not on the evidence conclude that the impoundment resulted in a loss that was immediate, significant and lasting.
17The Registrar included in its submissions the driving record belonging to the appellant’s daughter, Ms. Agyei-Baffour, which shows that her driver’s licence was suspended on the day of the impoundment, had been suspended for a year and continues to be suspended.
18The ground of appeal for due diligence requires that the vehicle owner has taken the necessary steps to ensure that the individual that will be driving their vehicle does not have a suspended driver’s licence or does not have a condition imposed on the licence requiring the driver to have an Ignition Interlock device installed in the vehicle being driven.
19The appellant testified that on the night of the impoundment, she asked her daughter whether she had her licence but did not take any other steps to verify the status of the driver’s licence. She stated that to that point, she trusted her daughter to act lawfully and to not keep secrets from her.
20The appellant testified that she was devastated when she found out that her daughter had been lying to her about such a big issue and had been lying to her for over a year.
21The appellant testified that her daughter regularly drove the car long distances over the period that it has been suspended.
22The appellant testified that she had no idea that her daughter’s licence was suspended otherwise she would not have let her daughter drive the car and definitely not repeatedly over the period of a year.
23The respondent submitted that there are several ways for parents to check the status of their children’s driver’s licence: they may contact the Ontario Ministry of Transportation by telephone at 1-905-565-6555 for automated service; they may access the website www.mto.gov.on.ca; they may attend personally to obtain a driver’s abstract at a local MTO Driver Licence Issuing Office; or they may attend at a Service Ontario Kiosk.
24The Registrar submitted that the Appellant did not undertake any of these four methods and therefore failed her obligation to do her due diligence.
25Black’s Law Dictionary defines due diligence as follows:
a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. (emphasis added)
26The Registrar’s assessment regarding the requisite standard of due diligence for owners in permitting others to use their vehicles must be applied on a case by case basis. The applicable standard for a car rental company renting a car to a complete stranger will be different to that of a parent lending their car to their child who lives with them. Each case must be decided on its own unique facts.
27It was held in 10068 v. Registrar of Motor Vehicles, 2016 CanLII 36689 (ON LAT) that requiring an owner to take the steps delineated above “in considering whether to lend a vehicle to an immediate family member with whom they are intimately familiar is unreasonable.”
28It is a reasonable expectation that parents will inquire whether their child has their driver’s licecse before driving the car, which the appellant did in this case.
29It is not reasonable to expect parents to assume that their children are not telling them the truth and go behind them on a regular basis to ascertain the legality of their child’s licence.
30I do not think it is common knowledge for most parents in Ontario that when lending their car to one of their children, they need to call the government or go on line to verify whether their child’s driver’s licence is suspended. Most parents take their children at face value.
31I found the appellant to be a credible witness. She has worked as an educator at Vanier College for 18 years. She presented herself in a way that I found to be consistent, forthright and authentic.
32She testified under oath that she did not know about the suspension. I believe her. I also believe that she asked her daughter if she had her driver’s licence, which assumes that it is a valid driver’s licence. I also believed that the appellant would not have told us that her daughter had been driving the vehicle all year, had she known the licence was suspended for that period.
33The appellant has several medical conditions and has been on medical leave from work since November 2017, while she has improved to the point that she will soon begin to work on a part-time basis, she testified that she was still experiencing depression and other forms of distress.
34I find it reasonable that in her current state, she would ask her daughter if she had her licence and relied on her daughter to be truthful.
35I am satisfied that in the existing circumstances, the appellant exercised due diligence (“a measure of prudence”) by asking her daughter if she had her driver’s licence with her before she drove the car.
ORDER:
36After considering the evidence, I order that the Registrar release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: July 25, 2019