Keyfree Technologies v. Registrar of Motor Vehicles, 2020 CanLII 27402

Court File and Parties

Date: 2020-03-27 File Number: 12621/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Keyfree Technologies Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: Roman Gold, Agent For the Respondent: Sonia DeSantis, Agent

Heard by Teleconference: March 26, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on March 26, 2020 to consider the appellant’s appeal of the 45 day impoundment of one of its vehicles, a 2012 Mazda, M31(the “vehicle”). The vehicle was impounded on February 19, 2020 because it was being driven by a person whose licence was under suspension. The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle.

ISSUES:

2The issues to be determined are:

(i) Did the appellant exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence?

(ii) Did the impoundment result in exceptional hardship?

CONCLUSION:

3On the evidence before me at the hearing, I find that the appellant did not exercise due diligence and the impoundment did not cause exceptional hardship within the meaning of s. 50.2(3)(c) and (d), respectively, of the Highway Traffic Act R.S.O. 1990, c.H.8 (the “HTA” or the “Act”).

LAW AND ANALYSIS:

4The owner of a vehicle that has been impounded pursuant to s. 55.1(1) of the HTA, may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

5There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant, in this case, appealed on the grounds of due diligence and exceptional hardship.

Due Diligence

6In order to establish that the appellant exercised due diligence, within the meaning of section 50.2(3)(c) of the HTA, the appellant must prove that it made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was impounded.

7Mr. Roman Gold, the agent representing the appellant and also one of its employees, gave evidence that the appellant is a company that is in the business of creating computer applications (“apps”) associated with key free technologies. He explained that they are now a car rental company but they have three vehicles which they are using to test their technologies.

8Mr. Gold testified that on February 13, 2020 a childhood friend asked him to let Megan Lindsay, the driver at the time of the impoundment, use one of the appellant’s three vehicles. He acknowledged that the appellant did not enter into any form of rental agreement or contract with the driver, nor did he verify her driver’s licence prior to sharing the digital key with her.

9Mr. Gold stated that he observed the driver’s licence in early November 2019 and believed it was still valid. In response to a question on cross-examination, he admitted that he was not aware that the Ministry of Transportation has a website where the validity or status of a driver’s licence can be confirmed on-line, free of charge. As such, he also admitted that he did not consult this website, to confirm that the driver’s licence was still valid, before giving her access to the key free technology.

10At a minimum, the appellant would have had to verify the driver’s licence, prior to allowing her to drive its vehicle, in order to satisfy the requirements of due diligence.

11Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 50.2(3)(c) of the Act.

Exceptional Hardship

12Section 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. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements.

13Mr. Gold testified that the appellant owns two other vehicles. He stated that the appellant is not currently using these vehicles to test its technology because of concerns associated with COVID-19. He gave evidence that the company is testing its app on various other platforms and is currently rolling out an on-line delivery app. He indicated that the hardship associated with the impoundment relates to the cost of securing the release of the vehicle.

14The evidence does not support exceptional hardship because the appellant has two other vehicles. The appellant’s reason for not using these vehicles for business purposes, at this time, has nothing to do with the impoundment.

15Since 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.

ORDER:

16Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.