Date: 2020-01-10

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:

Charlene McCamley

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Theodore Crljenica

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing:

By teleconference

January 10,2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1A hearing was held on January 9, 2020 by teleconference, to consider the appeal of the appellant Charlene McCamley 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 Nissan motor vehicle was impounded on November 29, 2019 on the grounds that at the time of the impoundment the operator of the motor vehicle, S.T., had a suspended driver’s licence. A Notice of Impoundment was issued for an impoundment period of 45 days. The Appellant’s Notice of Appeal is dated December 13, 2019.

3Pursuant to the Case Conference Report in this matter the only issue to be determined is whether the impoundment has resulted in exceptional hardship as defined by the legislation and regulations.

4Despite this, in her Notice of Appeal and in her testimony, the appellant raised the issue of having exercised due diligence in entrusting her vehicle to C.T., who is S.T’s son The appellant did not entrust the vehicle to S.T. She believes C.T. held a valid driver’s licence at the time and thus, she exercised due diligence. Therefore, I will consider both grounds in this decision, but for the reasons set out below, I confirm the impoundment.

ISSUES

5(a) Is the statutory test of due diligence satisfied on the basis that because the appellant did not know the S.T. would drive the vehicle?

(b) Did the appellant establish exceptional hardship?

EVIDENCE

Evidence regarding the issue of whether the appellant exercised due diligence.

6The respondent, Registrar of Motor Vehicles, led evidence that at the time S.T. was driving the appellant’s vehicle, his driver’s licence was under suspension.

7Prior to the date of impoundment, the appellant’s motor vehicle had been involved in a minor accident. She arranged for S.T., a friend, whom she described as a “back-yard mechanic”, to repair the vehicle. On the day of the impoundment, C.T. his mother and S.T. attended at the appellant’s home to pick up the vehicle to repair it.

8C.T., who the appellant believes had a valid driver’s licence at the time, drove the vehicle away from the appellant’s home. The appellant believed that S.T. would not drive the vehicle. That day the appellant did not make any inquiries of C.T. or S.T. regarding the status of their driver’s licence.

9It is the appellant’s understanding that at some point on the day of the impoundment C.T. had consumed alcoholic beverages, and S.T. “grabbed” the keys and drove the appellant’s motor vehicle. The police stopped the vehicle, determined that S.T., did not hold a valid driver’s licence and impounded the vehicle.

Evidence regarding exceptional hardship.

10The respondent, the Registrar of Motor Vehicles, led evidence that at the time of the impoundment the appellant was the registered owner of two other motor vehicles, a Cadillac and a Chevrolet. The appellant testified that the Chevrolet was actually her son’s vehicle and at the time of the impoundment and subsequently, it was not licenced. This is confirmed by the Registrar’s records. As for the Cadillac, the appellant had it licenced as a result of the impoundment of the Nissan. Unfortunately, the Cadillac’s transmission was not operating properly and the appellant was not able to drive the vehicle.

11The appellant testified that due to the impoundment of her motor vehicle she has not been able to driver her three teenaged children to school. The three children were at home on the day of the hearing. The school is about a 15 - 20 minute walk from the appellant’s home. There have been occasions that the children have walked to school. The appellant does not know why the children do not walk to school every school day. They do not take public transit, which is available, because teenagers do not think it is “cool” to take public transit.

12The appellant has had friends drive her on occasion to pick up groceries. She also testified that she missed a medical appointment but could not recall the date of the appointment – it could have been before the impoundment. It was also the appellant’s testimony that she has not scheduled any other medical appointments because she does not have her motor vehicle available to get to such appointments.

ANALYSIS – Due Diligence.

13The Tribunal’s analysis of the evidence is based on a test of the balance of probabilities. Based on the evidence, I find that the impoundment of the appellant’s motor vehicle was lawful and in accordance with the HTA and regulations as the driver’s licence of S.T. was suspended at the time he was driving the vehicle.

14When 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.

15Subsection 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):

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;

16The appellant’s position is that she did nothing wrong in entrusting her vehicle to C.T. and she did not know that S.T. would drive the vehicle.

17Unlicensed 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 a driver whose licence is under suspension not be allowed to operate the owner’s motor vehicle on public roads. The appellant entrusted the vehicle to C.T. who the appellant believes held a valid driver’s licence at the time of impoundment. I note that there is no real evidence that he did, but that is not relevant to this decision as C.T. was not driving the vehicle at the time of impoundment.

18The appellant is required by the HTA to exercise due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not then under suspension. This required the appellant to exercise due diligence in attempting to determine that S.T. held a valid driver’s licence at the time he drove the vehicle. The legislation does not provide that the exercise of due diligence in regard to the person to whom the vehicle was entrusted is sufficient if someone else was driving the vehicle at the time of impoundment.

19The appellant did not take any steps to determine if S.T. had a valid driver’s licence before he drove the vehicle. Thus, the appellant has not established on the evidence that she met the due diligence requirements of section 50.2(3)(c) of the Act.

20Although I have sympathy for the situation in which the appellant finds herself, the legislature has determined that the owner of a motor vehicle has an obligation to ensure that her vehicle is not driven by someone who does not hold a valid driver’s licence. This Tribunal cannot ignore the clear wording of the legislation.

ANALYSIS - Exceptional Hardship

21Section 50.2(3)(d) of the HTA provides that exceptional hardship constitutes grounds for appeal.

22Pursuant 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.

23It is my determination that there are alternatives to the appellant of utilizing the impounded motor vehicle. I agree with the appellant that neither the Cadillac nor the Chevrolet were alternatives available in place of the impounded vehicle. The Cadillac was not mechanically fit to be driven and the Chevrolet was not licenced.

24However, there are alternatives available. The appellant has been able to enlist the assistance of friends to shop for groceries. In any event, there is public transit available to the appellant and her children. The fact that the appellant’s children do not think it “cool” to take public transit they have the option of walking 15-20 minutes to get to school. They have chosen not to do so.

25If there was not an alternative to the impounded vehicle available to the appellant, I would have to consider other factors that are set out in Ontario Regulation 631/98, section 10. The only one that requires any consideration based on the facts before the Tribunal is whether there is or has been a threat to the health or safety to the appellant or any other person ordinarily transported by the impounded vehicle. There is no evidence of such a threat to any person arising from the impoundment. The appellant may have had to cancel a medical appointment as a result of the impoundment and she has not scheduled any other medical appointments as a result of the impoundment but there is no evidence that this has resulted in a threat to the health or safety of any person.

26Although I have sympathy for the appellant’s situation the Tribunal must base its decision on the wording of the legislation and regulations.

CONCLUSION

27In conclusion, I find that the appellant has not established that she exercised the due diligence or proven exceptional hardship pursuant to section 50.2 of the HTA and regulation 631/98.

ORDER

28For 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.