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: 2020-09-11

Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an impoundment of a motor vehicle pursuant to section 55.1 of the Act for driving while suspended

Between:

Chanel Rajotte Appellant

and

Registrar of Motor Vehicles Respondent

Decision and Order

Adjudicator: Katherine Livingstone, Member

APPEARANCES:

For the Appellant: Chanel Rajotte, Appellant

For the Respondent: Sonia De Santis, Agent

Hearing Date: By teleconference on September 8, 2020

Overview

1The appellant appeals the impoundment of her vehicle which was detained and impounded on July 10, 2020 as a result of being driven by a person whose licence was suspended.

2Pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for certain reasons.

3The owner of an impounded vehicle may appeal the impoundment pursuant to s. 50.2 of the HTA and request the Tribunal order the Registrar release the vehicle.

4The appellant relies on the following two grounds of appeal pursuant to s. 50.2 of the HTA:

50.2(3) (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 subject to the condition described in paragraph 2 of subsection 55.1 (1); and

50.2(3) (d) that the impoundment will result in exceptional hardship.

Issues

5The issues to be determined are whether the appellant exercised due diligence and whether she established the impoundment resulted in exceptional hardship.

Result

6I find the appellant has not met her onus of demonstrating due diligence or exceptional hardship and I confirm the impoundment of her vehicle.

Evidence and Analysis

Background

7The appellant is a single woman raising two children, an eight year old daughter and a year old son. Prior to the impoundment she had been in a two year relationship with the father of her youngest child.

8On the day of the impoundment her partner was driving her vehicle. The appellant said she was not driving the car as she was not feeling well. Her young son was also in the car. They were pulled over by the police.

9When the police stopped the vehicle, they told the appellant that her partner’s driver’s licence was suspended as a result of a prior conviction for a “DUI”.

10The vehicle was impounded for 45 days and was released to the appellant on August 24, 2020, after the appellant’s father paid the impoundment fees.

Issue #1 – Whether the owner of the motor vehicle exercised due diligence in attempting to determine the driver’s licence was not then under suspension.

11The appellant testified she bought the car in early July 2020 and only had the vehicle for a few days before it was impounded. She had spent the previous year without a car after the alternator on her old car broke. Prior to her partner’s driving on the day of the impoundment, he had driven her car two or three times.

12The appellant said she had asked to see her partner’s driver’s licence on only one occasion; when she was about 2 months pregnant with his child, which would have been approximately 1.5 years before the impoundment. She saw his licence in his wallet after that, however never looked at it again to satisfy herself that it was not suspended and/or expired. She said his wallet and all it’s contents, including his licence, were lost some months before the impoundment. At the time they were stopped by the police he had no means of identification on his person.

13Although the appellant said she knew her partner for years before they were a couple, she did not appear to know much about her partner’s driving history, other than he used to have his own car some time before they started dating. The respondent’s agent reviewed her partner’s driving record with her, which disclosed he had been under some form of continual suspension since March 2016.

14The appellant said during the time they were a couple he did not have a car and he got around by walking or taking buses. During the time they were a couple she once saw him drive someone else’s car.

Analysis on the issue of due diligence

15The due diligence ground of appeal requires the appellant to prove, on a balance of probabilities, that she “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…”

16As to what constitutes “due diligence,” the standard was considered by the Supreme Court of Canada in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove she took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.

17In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held passivity should not be confused with diligence, rather “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.”

18Under the HTA, one of the multiple obligations imposed upon the owner of a motor vehicle is to ensure the vehicle is not driven by persons who do not have a valid driver’s licence.

19The appellant’s position was that asking to see her partner’s licence near the beginning of their relationship amounted to due diligence. She argued that no one in a long term relationship would “keep looking at the licence” to ensure their partner had a valid licence. She said she took all steps that she “thought were necessary” and it would have been different if it was “someone who was just a friend”.

20The respondent’s agent argued the appellant did not satisfy the test for due diligence, in that it was insufficient to simply have asked her partner on one occasion to see his licence and then not ask again.

21I agree with the respondent’s submission. I find the appellant took a rather lax approach to satisfying herself that her partner was in fact a licenced driver. She was vague on the circumstances that led to her viewing the licence in the first instance, unclear as to when it was and why. She did not seem bothered that her partner did not apply to replace his licence after apparently “losing it” months before the impoundment. Additionally, the fact she had not seen him drive regularly only heightens her responsibility to ensure he was properly licenced.

22The appellant has not met the standard of due diligence.

Issue #2 – Whether the impoundment will result in exceptional hardship

23The appellant testified she lives in Oshawa with her two children. She lives in her mother’s residence, although her mother has been mostly absent from the residence for the last four months as her mother has been caring for her ill son.

24The appellant said in February 2020, she suffered a fall and injured her back which has caused a great deal of ongoing discomfort and affected her ability to walk long distances.

25She has not been employed for over a year and is in receipt of government assistance.

26She continues to have regular contact with her former partner as he visits their son. She also regularly has his 3 year old daughter stay overnight at her residence.

27The appellant said while the car was impounded, she went grocery shopping 3 times, once every two weeks on the day when she received her government cheque. She said this was her normal practice although, without her vehicle, she paid her neighbour to take her on one occasion and walked to the store and took a taxi back another time. It was unclear what she did on the third occasion. She said although she considered having her groceries delivered, she did not take that route as her child was a “picky eater” and she was concerned the store might not get the order right. She inquired of her government worker about getting bus tickets but was told they were only available if she was looking for employment.

28At one point she said she was unable to pick up a prescription for a week due to the loss of her vehicle. She also said an ultrasound appointment concerning her back injury needed to be rescheduled.

29She confirmed that neither of her children were prohibited from seeking medical attention during the period of impoundment. Although she had been making regular visits to Sick Kids in Toronto to address her son’s health issue, she had not been going since the onset of the pandemic and was able to get any information or assistance she needed over the phone.

30She did relate her daughter’s father had to bring her daughter back from a visit to his home in Toronto via Uber as she was unable to drive to pick her up.

Analysis on the issue of exceptional hardship

31Section 10 of Regulation 631/98 sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.

32Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.

33Section 10 (4) then 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.

34If this initial step of the test for exceptional hardship is met, the Tribunal must consider on a balance of probabilities, 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.

35While it is clear the impoundment caused the appellant some inconvenience and discomfort, particularly given her health challenges, I am not satisfied the appellant has demonstrated exceptional hardship during the time of the impoundment. There was an alternative to the impounded vehicle.

36The appellant had been without a car for some significant period of time before the July 10 impoundment, except for a very few days immediately before July 10. It appeared from her evidence that her difficulties during the impoundment were similar in nature to what she had experienced in the past year before she purchased the car. Admittedly her mother had been available to assist with transport issues during some of that year, but her mother had not been there for a couple of months before the impoundment. The appellant said that prior to her car purchase she had relied on her neighbours to assist with some of her transportation needs. Much like the period leading up to the impound, the appellant had alternatives such as neighbours, taxis and Ubers. In particular, with respect to her shopping needs, her routine continued as it had been before the impoundment.

37Although undoubtedly it would have been preferable for the appellant to have a vehicle during the impoundment period, I find her inconvenience during that period of time mirrored her situation in the previous year, with the exception of a few days pre-impoundment.

38I am further satisfied the impoundment did not result in a threat to the health and safety of any person ordinarily transported by her vehicle. Her children were not denied necessary medical care and although her father’s daughter had to take an Uber to transport her back to the appellant’s residence, this was an inconvenience, not an exceptional hardship

39Additionally, she did not require her vehicle for work purposes during the time of the impoundment as she was not working, so there is no financial or economic loss.

40While I have sympathy for the appellant’s frustration in the inconvenience the impoundment has caused her and her family, I do not find her circumstances during the period of the impoundment amounted to exceptional hardship.

Order

41Pursuant to subsection 50.2 (5) of the Highway Traffic Act, the appeal is dismissed and the impoundment of the vehicle in confirmed.