Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-03-04

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:

Dale Fazekas Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION

Adjudicator: Zahra Dhanani, Member

For the Appellant: Self-Represented

For the Respondent: Sanjay Kapur

Date of Hearing: January 9, 2020

OVERVIEW

1The appellant, Dale Fazekas, appeals the impoundment of his commercial vehicle, which took place on December 17, 2019.

2The appellant had hired an employee for his security business and believed the employee had a valid licence. The employee was driving to a job site on the day of the impoundment in a company car and was pulled over by police.

3The vehicle was impounded for 45 days due to the driver’s licence being suspended.

4The appellant has filed this appeal on the bases that: (a) he exercised due diligence in trying to determine if the driver had a valid licence; and (b) the impoundment has caused exceptional hardship.

ISSUES

5The primary issues before me are:

a. Did the owner of the motor vehicle exercise due diligence in attempting to ascertain whether his employee’s driver’s licence was not under suspension at the time that the vehicle was impounded?

b. Has the impoundment of the vehicle caused the appellant exceptional hardship?

6The burden is on the appellant to prove the facts of his case as they pertain to these issues.

CONCLUSION

7On the evidence before me, I find that the appellant did not exercise due diligence in attempting to ascertain whether his employee’s driver’s licence was not under suspension. I also find that the impoundment did not result in exceptional hardship. Therefore, the impoundment of the vehicle is confirmed.

LAW AND ANALYSIS

8Under the Highway Traffic Act (Act), a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose driver’s licence has been suspended.

9The only grounds for appeal under which the Tribunal may order the Registrar of Motor Vehicles (Registrar) to release an impounded motor vehicle are set out in s. 50.2(3) of the Act:

(a) That the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) 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;

(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; or

(d) That the impoundment will result in exceptional hardship.

DUE DILLIGENCE

10The first issue before me is did the owner of the motor vehicle exercise due diligence in attempting to determine that the driver’s licence of the driver to whom he provided the car was not then under suspension?

11TN, the employee who was driving the car at the time of the impound, was referred to the appellant by a trusted colleague. The appellant testified that he had heard great things about TN and was eager to have him join the business.

12The appellant testified that he looked at TN’s driver’s licence the first time they met, and everything seemed fine.

13The Registrar provided evidence that TN’s drivers licence has been suspended since November 03, 2005.

14This Tribunal has consistently interpreted due diligence to mean that the owner has taken all reasonable steps in the circumstances to ascertain whether the licence was under suspension.”

15The Registrar submitted that there are four ways for a careful and prudent individual or company to determine if a driver had a valid Ontario driver licence: (1) they may contact the Ontario Ministry of Transportation by telephone; (2) they may access the website www.mto.gov.on.ca; (3) they may attend personally to obtain a driver’s abstract at a local MTO Driver Licence Issuing Office; or (4), they may attend at a Service Ontario Kiosk.

16The Registrar submitted that the appellant did not exercise due diligence because if he had actually checked TN’s licence using one of these four methods he would have seen that it was suspended. The Registrar submitted that there was no evidence submitted that TN provided a fake licence or anything to explain the discrepancy.

17Without accepting the Registrar’s position as determinative of the steps an average person should take to satisfy the due diligence requirement, it is clear on these facts that the appellant failed to look closely at the drivers licence. If the appellant had looked at the driver’s licence he would have seen that it was expired long ago.

18I find that there is nothing before me that would explain how if the appellant had checked the licence why he did not see that it was suspended or expired. I find that the appellant did not check out the driving record/licence of the person to whom he provided the company car.

19As a result, I find that the appellant did not exercise due diligence in lending the car to TN.

EXCEPTIONAL HARDSHIP

20Section 10 of O. Reg.631/98 (the “Regulation”) under the Act sets out the criteria and factors that I must consider in determining whether exceptional hardship has resulted from an impoundment. The burden of proving such hardship rests on the appellant.

21In this case, the appellant alleges that the impoundment resulted in his losing income and therefore resulted in exceptional hardship. He submitted that the cost of the impoundment also resulted in hardship.

22Financial 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).

23Subsection 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.

24The 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.

25There was no evidence submitted by the appellant that there were no other alternatives to the impounded vehicle. In this case the appellant was able to rent a car for his business. While it was not convenient for the appellant the option was available. Furthermore, the appellant did not use this vehicle to ordinarily transport himself for his or his family’s personal needs.

26The appellant testified that he lost income from having his vehicle impounded, potentially a loss in the amount of $11,000.00 in contracts.

27However, the appellant further testified that he runs a successful business and his business will continue despite the loss.

28The hardship the appellant explained does not satisfy the criteria under the law to justify a finding of exceptional hardship because the economic loss he suffered will not be significant and lasting.

DECISION

29Pursuant to subsection 50.2 (5) of the Act, I confirm the impoundment.