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: 2020-02-26

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:

Misty Tye

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Decision and Order

Adjudicator: Luisa Ritacca, Member

Appearances:

For the Appellant: self represented

For the Respondent: Stephen Grootenboer, agent

A. Overview

1On January 17, 2020, a teleconference hearing was held to consider the appellant’s appeal of a 45-day impoundment of her 2007 Hummer (the “vehicle”) under s 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the Act).

2The vehicle was impounded on December 16, 2019. At the time of the impoundment, the appellant’s vehicle was being driven by her boyfriend, whose licence was suspended and had been since 2008.

3The appellant appeals on the ground she exercised due diligence in determining whether the driver, at the time of impoundment, had a valid licence and on the basis that the impoundment has and will continue to result in exceptional hardship.

4The 45-day impoundment is scheduled to expire on January 30, 2020. The appellant indicated that she needs access to her vehicle before that date to attend Toronto for work.

5Having carefully reviewed the evidence provided during the hearing, I find the appellant did not exercise due diligence in attempting to determine if the driver’s licence was under suspension and further I am not satisfied that the impoundment has and will continue to cause exceptional hardship. As such, I confirm the impoundment of the appellant’s vehicle.

B. Issues

6The two issues to be determined on this appeal are as follows:

a. Did the appellant exercise due diligence in attempting to determine the driver’s licence of the driver (her boyfriend) was not under suspension at the time he took her vehicle?

b. Will the impoundment result in exceptional hardship for the appellant?

C. Facts

7The facts of the impoundment are not in dispute. The appellant testified that she asked her boyfriend to help her move into her new home. During the course of the move, she asked her boyfriend to take her vehicle back to her old home to pick up some leftover belongings and to bring them to her new home. He was stopped by the police driving the vehicle, at which time it was impounded given that he had a suspended license. The driver’s license had been suspended since 2008. The suspension was as a result of failing to complete a remedial program as part of a sentence imposed for driving with over 80mg of alcohol in his blood.

8During her testimony, the appellant candidly admitted that she did not ask her boyfriend as to the status of his driver’s licence. She explained that since they began dating (approximately 5 months prior to the incident), she had seen him use his employer’s vehicle to get to and from work and on the weekends. She testified that she had no reason to believe that he did not have a licence.

9The appellant did acknowledge, however, that sometime in November 2019, her boyfriend was delayed getting to her home because he had been stopped by the police. He told the appellant that he was stopped because of a broken taillight. At the time, the appellant asked him whether he had a valid licence and he said that he did, but that he did not have a valid drivers’ licence card with him. He told the appellant that he was waiting for his new card to come in the mail.

10Further, the appellant acknowledged that the day of the impoundment was not the first time she allowed her boyfriend to drive her vehicle, but he had done so infrequently. Finally, she conceded that she did not know about her boyfriend’s driving history or his criminal conviction.

11With respect to the ongoing hardship, the appellant testified that she is currently employed as a dental assistant. She is a single mother to a teenage daughter. She and her daughter recently moved into a new home. As a term of her employment, she is required to attend at two office locations in the course of a day. Since the impoundment, she has been unable to travel between offices, leading her employer to become frustrated and angry.

12She explained further, that while she has been able to rely on friends to drive her to and from work, her daughter has had to walk over ninety minutes to attend school. The appellant was asked whether her daughter could use a school bus to attend at school. She indicated that while she applied for her daughter to get picked up by the school bus, she had been rejected. Apparently, they live out of district for the school and so therefor busing is not available to them.

13The appellant testified that she cannot afford the regular use of taxis or ride share programs. She and her daughter do have access to a city bus service, but it is not convenient for them to use it on a regular basis, and in any event, the appellant cannot use the bus during her work day to get to and from the two office locations.

14The appellant explained that she is in a precarious financial situation and that if she loses her employment because she cannot travel between offices, she will be unable to make her mortgage payments on her newly acquired home.

15The appellant said that the driver (her boyfriend) is not in a position to assist financially. He is a roofer and so he is presently not working. He cannot contribute money nor can he assist with driving her or her daughter to work and school.

D. Law and Analysis

16The owner of a vehicle impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment based on one of four grounds set out in s. 50.2 (3) of the Act. In the present case, the appellant relies on the grounds as set out in subsection (3)(c) and (d). The appellant argues that she exercised due diligence in attempting to determine that the licence of the driver was not under suspension prior to allowing him to take her vehicle. She further argues that the impoundment has resulted and will continue to result in exceptional hardship for her. As is set out in more detail below, the appellant argues that the impoundment has impacted her ability to get to and from work and has caused hardship on her daughter getting to and from school in a timely manner.

17The onus is on the appellant to demonstrate she exercised due diligence and/or that the impoundment will cause exceptional hardship.

18Following the hearing the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.

Due Diligence

19With respect to the appellant’s exercise of due diligence, it was clear from the evidence presented that she placed her trust in her boyfriend. She has no reason to believe that he did not have a driver’s licence and was comforted by the fact that he regularly used his employer’s vehicle. The appellant’s boyfriend abused her trust. He was well aware of the status of his driver’s licence and it appears that he chose not to share his conviction or driving status with the appellant.

20That said, the appellant acknowledged that she specifically asked her boyfriend about his driver’s licence. He admitted that he did not have a driver’s licence card, but he told the appellant that the card was at his home. Unfortunately, the appellant believed him.

21The legislation does not set out specifically what is meant by “due diligence”; instead the Tribunal must consider the particular circumstances and assess what a reasonable and cautious person would have done under the same circumstances.

22While I appreciate that the driver was not candid with the appellant regarding his licence, I am not satisfied that the appellant did enough to satisfy herself that the driver had a valid driver’s licence prior to allowing him to take her vehicle. I make this finding, particularly given that the appellant acknowledged that she asked the driver about his licence and that he was unable to produce a copy of it. Given her suspicions, she ought not to have allowed him to take her vehicle, without first seeing his actual licence.

23The objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This will help to promote more safety on the roads.

24I find that a reasonable and cautious person, after having raised a concern about the driver’s licence, would have taken additional steps to ensure the validity of his right to drive. In the circumstances, the appellant has not satisfied me that she acted with due diligence such that her appeal should be allowed.

Exceptional Hardship

25Section 10 of Ontario Regulation 631/98 provides the Tribunal with the criteria it may consider in order to determine whether the appellant has shown that the impoundment will result in exceptional hardship. Subsection (1) requires the Tribunal to consider whether the impound will result in a threat to the health and safety of a person ordinarily transported by the vehicle or a threat to the health and safety of the public.

26Subsection (2) prohibits the Tribunal from considering whether the impoundment will result in an inconvenience to any person; financial or economic loss; loss of employment or employment opportunity to any person or loss of education or training or education or training opportunity to any person, unless, the owner can demonstrate that the presence of the factors as set out in subsection (3). :

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 a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

27In order to satisfy the Tribunal that there is no reasonable alternative, the owner must show that they considered every reasonable option.

28In this case, there is no doubt that the impoundment of the vehicle has resulted in significant inconvenience for the appellant and her daughter. Both she and her daughter have had to make alternative arrangements to attend work and school. Some of these alternative arrangements have resulted in an additional financial burden for the appellant. The appellant further suggested that her employer was growing increasingly frustrated with her because of her inability to travel conveniently between her employer’s offices.

29While I appreciate that the impoundment of her vehicle has resulted in inconvenience and financial stress for the appellant, I am not satisfied that such inconvenience amounts to “exceptional hardship”. The appellant acknowledged that she and her daughter have made alternative arrangements for travel. She has friends who have been able to assist her and both she and her daughter have access to public transit. While these arrangements are not ideal and cannot replace the convenience of having access to your own vehicle, they nonetheless are available to the appellant. .

E. Order

30For the reasons set out above, pursuant to s 50.2 (5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.