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: 2020-07-09

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 for driving while suspended

Between:

Syed Husain Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Syed Husain

For the Respondent: Sanjay Kapur, Agent

Place and dates of hearing:

By teleconference July 2, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Syed Husain appeals the 45 days impoundment of his motor vehicle on the grounds that: a) his licence was not suspended at the time his vehicle was impounded¹, b) he exercised due diligence in attempting to determine his licence was not suspended at the time of impoundment, and c) the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on April 11, 2020 and a hearing was held on July 2, 2020, by teleconference, to consider the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

3For the reasons set out below, I confirm the impoundment.

B. ISSUES:

4The issues under the appeal are as follow:

a. Whether the appellant exercise due diligence in attempting to determine that his licence was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1) of the HTA, at the time of the impoundment; or

b. Whether the impoundment will result in exceptional hardship.

C. LAW:

5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

6Subsection 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 appellant appeals on the basis of s. 50.2(3)(c) or (d) which states that the Tribunal may order the Registrar to release the motor vehicle where

(c) 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 subject to the condition described in paragraph 2 of subsection 55.1 (1); or

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

7Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal 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 the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.

8Section 10 (4) sets out what an appellant must show in order to meet this initial prong of the test:

10 (4) In order to show that no alternative to the impounded motor vehicle is available… 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.

9If the Tribunal finds that the appellant has no alternative to the impounded vehicle, s.10(1) then it shall consider whether the impoundment will result in,

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 456/10, s. 3.

10Sections 10 (2) and 10 (3) together establish other factors that may or may not be considered by the Tribunal in certain circumstances. Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) “inconvenience to any person” in determining exceptional hardship.

11The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

12Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

D. ANALYSIS:

Preliminary Matter

13At the start of the hearing, the appellant initially asked for an adjournment, stating that he needed more time to provide evidence with respect to his employment. The appellant acknowledged the case conference order required parties to submit all the documents they intend to rely on by June 29, 2020.

14The appellant stated that he has been working at a Harvey’s restaurant since early 2020 and he would like to submit a letter from his employer confirming his employment is considered “essential work”. The appellant did not provide any reason why he could not provide this letter before June 29, 2020.

15After being advised that by virtue of the emergency order of the province, only essential work could continue during the COVID-19 pandemic, the appellant then withdrew his request for an adjournment and opted to proceed with the hearing.

Has the Appellant Exercised Due Diligence

16I find that the appellant has not exercised due diligence to ensure that his licence was not under suspension at the time of impoundment.

17Due to charges of impaired driving as well as failure to provide breath and blood sample, the appellant’s driver’s licence was suspended on February 25, 2020. While the appellant knew that his licence has been suspended, he said he only found out his licence has not been reinstated when his vehicle was impounded on April 11, 2020.

18The appellant explained that after the suspension on February 25, 2020, he was looking to appeal his criminal charges. His lawyer advised him that he had until March 25, 2020 to file an appeal. The appellant also stated that his lawyer told him the minute the appeal is filed; his licence will be reinstated.

19Since the lock down due to COVID-19, the appellant’s lawyer has stopped responding to his phone calls. However, based on his earlier conversation with counsel, the appellant assumed that by March 25, 2020, the deadline for the appeal, his lawyer would have filed the appeal and his licence would have been reinstated. The appellant started to drive again after that date.

20Under questioning by the Registrar, the appellant confirmed that he never spoke to his lawyer before he started driving again. He contacted the court reporter that provided court transcription services to see if his lawyer has filed an appeal but was told to contact his own lawyer instead. Indeed, the appellant said he did not even know his lawyer was still his lawyer and would take his case to the appeal at the time due to the lack of communication.

21The court reporter told the appellant to not make a move until he has heard from his lawyer. So, the appellant tried to contact his lawyer but received no response.

22By his own account, the appellant was eventually able to get in touch with his counsel, who advised him that due to the pandemic, the court has been closed and the appeal period has been extended.

23The appellant submitted if it were not for the lock down, his lawyer would not have shut down his office, and he would have heard from his lawyer. Under normal circumstances, the appeal would have been filed, and the suspension would have come off. It is thus “viable” for him to believe that the suspension would have been lifted.

24But the appellant’s argument cuts both ways. Given the lock down, I find it unreasonable for the appellant to act as if this was one of those “normal circumstances”.

25As a starting point, the appellant did not point to any provision in the Act or in the Criminal Code that confirms his position that his licence would have been reinstated once he has filed the appeal. However, I accept that this was what the appellant was told and that he acted on this belief. I still must assess whether the appellant has exercised due diligence to ensure that his lawyer has filed the appeal on his behalf to trigger the reinstatement of his licence. The answer, I find, is no.

26In 9675 v. Registrar of Motor Vehicles², citing the Black’s Law Dictionary (sixth edition) at page 457 which defines “due diligence” as: “Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case,” the Tribunal finds that “due diligence” requires an owner exercise care and attention.

27In most of these impoundment cases, the driver is someone other than the owner themselves, and the owner sometimes may not be aware that the licence of the driver is under suspension. In this case, the appellant is the person who drove the vehicle, and he is fully aware that his licence has been suspended as of February 25, 2020.

28Essentially, without any confirmation from anyone including his lawyer, the appellant proceeded simply with the assumption that an appeal has been filed in his criminal case and his licence has been reinstated. This is not what a “reasonable” and “prudent” person would do under the circumstances. The appellant’s defence fell flat particularly in light of his admission that he was not even sure if his lawyer was still acting on his behalf after several failed attempts to contact him.

29Driving without a licence is an offence under the law. Even if the appellant was acting based on his lawyer’s earlier advice and was unable to get in touch with counsel, a reasonable and prudent person would still have tried to find other ways to confirm that their licence has been reinstated before driving again. Other than calling the court reporter who provides transcription services – and who advises the appellant “not to make a move” until he has heard from his counsel, the appellant has in fact taken no step whatsoever to ascertain whether his appeal has been filed, and thus whether his licence has been reinstated before driving again. What the appellant has done was neither reasonable nor prudent.

30I therefore find the appellant’s argument based on his exercise of due diligence lacks merits.

Will there be Exceptional Hardship

31I further find the appellant has not established that the impoundment will result in exceptional hardship.

32The appellant stated that he has asthma and uses a puffer occasionally. He also has anxiety and depression for which he continues to receive counselling – even during the pandemic and after his vehicle has been impounded. Neither of these constitute the basis of his exceptional hardship argument, however. In addition, while in his appeal, the appellant mentioned that he was having difficulties getting medication for his nail fungus, the appellant confirmed at the hearing that he has been seeing a specialist and is on medication for this ongoing medical condition.

33The appellant’s only submission on exceptional hardship is that he is at risk by virtue of having to travel by bus instead of by his own vehicle. The appellant stated that he has continued his employment at Harvey’s during the COVID-19 pandemic. Without his vehicle, the appellant had to take the bus to work, which was “quite a bit of a ride”. The appellant stated that travelling on a bus is not safe, as it is usually crowded with only the backdoor remains opened. It is not always possible to maintain physical distance on a bus. Because his employment is considered essential work, he has to go out because he has to work. It is not safe for him to travel without a vehicle.

34The appellant confirmed that he has already retrieved his vehicle as the impoundment period has ended. Since then, his father has been driving him to work.

35The appellant also relies on a recent decision of this tribunal in Hall³ which finds that a bus is not a reasonable alternative to the appellant in that case. Arguing that health and safety is equally important to everyone, everyone’s life is in danger when they take public transit, and the people who are taking public transit are risking their lives, the appellant argued his appeal should be granted on that basis alone.

36While I appreciate that during this very unusual time that we all live in, taking the public transit may pose a heightened risk, it is an exaggeration to say all those people who are taking public transit are “risking their lives”, or that their life is “in danger” by virtue of being on a public bus. Apart from the fact that the government has not seen fit to shut down the public transit due to the risk it poses to the public, the appellant also has not demonstrated how his life in particular has been put at risk.

37The decision the appellant cited can be distinguished on facts. In that case, the appellant Ms. Hall was a mother with a 12-year-old child. Given the school closure, the appellant needs to provide care for her son every day while she is at work and has to take her son with her on the bus. Ms. Hall’s son is autistic, and it is difficult to keep him from touching objects and his face while riding on the bus. It is in light of all of these circumstances that the Tribunal member in that case concludes:

I am satisfied that the risk of contagion on the bus to both herself and her child was amplified because of the difficulties her son faces in terms of avoiding contact with objects. Given the risks posed by the COVID-19 virus, I conclude that travel by this method poses a threat to the health and safety of both of the appellant and her son, and therefore is not a reasonable alternative mode of transportation. (emphasis added)

38I do not find the decision of Hall suggests anyone who takes the public transit is at risk, and that the Tribunal must grant an appeal to every appellant who does not have an alternative vehicle and must take the public transit. Instead, every case must be decided on a case by case basis, taking into account the specific circumstances and challenges faced by each appellant.

39Unlike the autistic child in the case of Hall, the appellant is fully aware of the risk posed by COVID-19 and is taking precaution to protect himself. Thanks to those precautions, the appellant has in fact been tested negative for COVID-19 even though he has been riding the public transit to work before the end of the impoundment period. The appellant has not provided any evidence to show that the risk of contagion is amplified in any way for him when he travels on a bus.

40Based on the above, I therefore find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

41For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

____________________________ Avvy Go, Member

Footnotes

1. 1While the appellant raised this issue during the case conference, he did not pursue this argument at the hearing.
2. 22015 CanLII 50499 (ON LAT)
3. 3Erin Hall v. Registrar of Motor Vehicles, 2020 ONLAT HTA MVIA 12660