Licence Appeal Tribunal
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:
James Campbell Services Inc. Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Order made by: Marisa Victor, Member
Appearances: For the Appellant: Justin Campbell, agent For the Respondent: Sanjay Kapur, agent
Heard by Teleconference: August 7, 2019
DECISION AND ORDER
Overview
1The appellant appeals the 45-day impoundment of its vehicle. The vehicle is a “loaner” vehicle used by the corporation to provide to customers of Durham Kia. The suspended driver, Tara Fowler, was loaned the vehicle while her own vehicle was under repair. On July 3, 2019, the suspended driver was stopped by the police and the vehicle impounded due to her suspended licence.
2The appellant appeals on the grounds that it exercised due diligence in attempting to determine that the driver’s licence of the Ms. Fowler was not under suspension and that it will experience exceptional hardship.
3After considering the evidence, the appellant has not satisfied me that the owner of the vehicle exercised due diligence in attempting to determine if the driver of the vehicle was not then under suspension. The appellant has also failed to establish grounds for exceptional hardship. The impoundment is therefore confirmed.
ISSUES
4The issues to be determined are:
a. Did the appellant exercised due diligence; and
b. Whether the impoundment will result in exceptional hardship.
ISSUE 1: DID THE APPELLANT EXERCISE DUE DILIGENCE?
LAW
5Under s. 50.2(3)(c) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of its vehicle on the basis that it exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle was not under suspension. The onus is on the appellant to prove this ground of appeal.
EVIDENCE
6The appellant’s agent testified that when a customer comes in to Durham Kia for servicing of their vehicle, the company may provide the customer with the use of a “loaner” vehicle while they wait for their vehicle to be repaired. The impounded vehicle is one of those loaner vehicles. The appellant testified that its normal practice is to take a copy of the customer’s drivers licence, ownership and work order. The customer must also sign a loan agreement. The appellant submitted that taking a copy of a valid driver’s licence should be sufficient due diligence and that further steps, such as obtaining a driver’s abstract, would be a violation of privacy rights and too time consuming and costly to be useful for a business.
7In this case, the suspended driver provided a driver’s licence under the name of Tara Fowler on June 26, 2019. The appellant agreed under cross-examination that the driver’s licence provided showed an expiry date on its face of May 5, 2019. The appellant agreed that the driver’s licence at the time of the loan of the vehicle was not valid.
8The respondent also provided evidence that Tara Fowler and Tara Gardiner are one and the same person and that the driver’s licence information for those two records was merged in 2016. The respondent submitted that the driver, under either name, was a suspended driver pursuant to a criminal code violation in 2005. Her driver’s licence had also expired. The last time the suspended driver had a valid driver’s licence was 1999.
9The respondent submitted that companies who rent out vehicles should take appropriate steps to ensure they are not lending vehicles to suspended drivers. The respondent also provided evidence that there is an on-line tool to check the validity of a driver’s licence that is quick and costs approximately $2.
10The respondent’s evidence was uncontested.
ANALYSIS
11The legislation requires an owner to take appropriate steps to ensure they are not lending a vehicle to a suspended driver. Individuals and businesses alike are required to take some positive steps in order to avail themselves of the due diligence ground of appeal.
12The appellant in this case did not exercise due diligence. The appellant’s company had a process for loaning a vehicle. That process included taking a copy of the customer’s valid driver’s licence along with other paperwork. The appellant argued that the showing of a valid licence should satisfy the due diligence ground. It is clear, however, that the driver’s licence provided had expired prior to the date it was provided. Even if it had not expired, the appellant would have been expected to take additional steps to ensure that the driver was not then under suspension. In this case, the appellant accepted an expired licence and took no further steps to determine that the customer was not a suspended driver. I find that the appellant has failed to prove on the balance of probabilities that it exercised due diligence in determining that the driver was not a suspended driver.
ISSUE 2: WHETHER THE IMPOUNDMENT WILL RESULT IN EXCEPTIONAL HARDSHIP
LAW
13Under s. 50.2(3)(d) of the Highway Traffic Act (HTA), the appellant may appeal the impoundment of its vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.
14Section 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. Under that Regulation, I must first consider whether there are reasonable alternatives available for the impounded vehicle.
EVIDENCE
15The appellant did not raise this ground of appeal at the case conference. Nevertheless, at the hearing the appellant made submissions that the loss of the vehicle to the business was hurting its ability to operate a business.
16The appellant provided evidence that it owns ten loaner vehicles, including the impounded vehicle, and that they are in high demand by its customers. When it does not have a loaner vehicle available, it refers customers to a rental car company instead. The appellant agreed that the business will continue to operate despite the impoundment of the vehicle. The appellant also testified that the normal operator of the loaner vehicle is the customer who borrows it.
17The respondent submitted that the appellant’s submissions and testimony do not meet the grounds for exceptional hardship. The appellant has access to numerous vehicles. The Regulation also requires that the exceptional hardship must relate to the person normally transported by the vehicle, which in this case is the customer, not the appellant. In addition, the appellant will not suffer longstanding financial effects from the impoundment.
ANALYSIS
18In 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.
19The evidence shows that the appellant has nine other loaner vehicles it can provide to customers and has a regular practice of referring customers to a rental car company when all the loaners are in use. As the appellant has alternative transportation available, an appeal on the grounds of exceptional hardship is unavailable.
20The appellant’s recourse with respect to the losses it has experienced, including the cost of the impoundment itself, is set out in s. 55.1(27) of the Act. This section allows the appellant to recover costs of the impoundment and any other losses incurred during the impoundment from the suspended driver.
21The Regulation sets out a stringent test for exceptional hardship, and in this case, the evidence does not support that ground of appeal.
ORDER
22The impoundment of the appellant’s motor vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: August 27, 2019