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: 2020-08-19

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:

Meena Devi

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Meena Devi

Reisha Prasad, Interpreter and Representative

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By teleconference on August 14, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, Meena Devi appeals the 45 days impoundment of her motor vehicle on the grounds that: b) she exercised due diligence in attempting to determine the licence of the driver was not suspended at the time of impoundment, and c) the impoundment will result in exceptional hardship.

2The appellant’s vehicle was impounded on July 16, 2020 and a hearing was held on August 14, 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 did exercise due diligence in attempting to determine that the licence of the driver 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.

6The impound period is 45 days if there has been no previous impoundment in the last two years.

7Subsection 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.

8Regarding the ground of due diligence, the appellant must show that she took “all reasonable care” to avoid the particular event (in this case, letting a suspended drive use her vehicle).

9Section 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.

10Section 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.

11If 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.

12Sections 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.

13The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

14Following 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:

Has the Appellant Exercised Due Diligence

15I find that the appellant has not exercised due diligence to ensure that the licence of the driver was not under suspension at the time of impoundment.

16On the day in question, the appellant let her eldest son drive one of her vehicles, a pick-up truck, because her son needed the vehicle for a job.

17Due to charges of impaired driving, the driver’s licence of the appellant’s son has been under suspension. The appellant testified that she was unaware that her son did not have a licence when she lent him her truck. The appellant further stated that her son, who is 41-years-old, does not live with her and does not tell her anything. She only found out her son did not have a licence when he failed to come home with her truck.

18Under questioning by the Registrar, the appellant confirmed that she never asked her son to show her his licence. She said she knew as a mother that her son had a licence but did not know that it has been taken away. The appellant also stated that her son does not often ask her to borrow her truck. The appellant’s son does not have a stable job. He takes on contract work from time to time, mostly with another partner who would drive him to the job site. On the day in question, he needed the appellant’s vehicle to do a job which was expected to last only for a day.

19Upon further questioning, the appellant acknowledged that she had previously let her son take her truck in July 2019, and that at the time his licence was also under suspension. The appellant’s vehicle was then impounded for a week. The appellant explained that she knew her son’s licence was suspended in 2019, but added that it was a long time ago, and she thought the 2019 suspension was only going to last for 90 days.

20For the reasons set out below, I find the appellant’s argument based on her exercise of due diligence lacks merits.

21First of all, before lending her truck, the appellant did not even ask her son to show her his licence to see if it has expired, let alone taking steps to make sure it was not under suspension. Contrary to what she has initially stated, the appellant was not completely in the dark about her son’s driving history, as she already has had her truck impounded once after lending it to him in July 2019. While it is certainly possible that the appellant does not have the accurate information about the length of suspension, she should have at the very least asked her son to confirm that his licence was currently not under suspension when he borrowed her truck again for the second time. Yet she did not do so. The appellant thus cannot claim that she has exercised due diligence when she relied simply on her own belief that the suspension period has come to an end.

Will there be Exceptional Hardship

22I further find the appellant has not established that the impoundment will result in exceptional hardship.

23The evidence provided by the Registrar shows that the appellant owns two vehicles, including the one under impoundment. The appellant readily admitted that she does not have any problem with transportation because of this second vehicle. Indeed, as the appellant explained, she seldom uses the vehicle that has been impounded, which she just leaves on the driveway. Instead, she uses the other truck, which she still has, for her daily basis.

24The real hardship faced by the appellant arises from the fact that she cannot afford to pay the $2,500 or so impoundment fee. The appellant lost her job with GM in December 2019 when the company shut down the plant. Because the appellant was given termination and severance pay by GM, she was therefore not entitled to receive any Employment Insurance (EI) benefits after she lost her job. The appellant is also not entitled to receive the Canada Emergency Response Benefits (CERB) that the Federal Government has established during the pandemic because she did not lose her job due to COVID-19. As a result, the appellant is facing tremendous financial hardship, having lost her main source of income, while continuing to have to pay for all her living expenses and mortgage payment.

25While she has not asked, the appellant said she cannot rely on her son to pay for the impoundment fee because he also does not have a job, and has a number of obligations including child support payment for his two young children.

26Further, the appellant had a heart attack last year before her plant closed down and had to undergo a triple bypass surgery. While she has recovered since, she was forced to retire earlier than she had wanted, thereby adding to her financial woes.

27I am extremely sympathetic to the appellant’s plight. However, my hands are tied when it comes to determining whether exceptional hardship will result from an impoundment. As noted above, in order to establish exceptional hardship, the first requirement in the Regulation is that there is no alternative to the impounded vehicle. If there is, the Tribunal needs not consider any other requirements. In this case, the appellant does have an alternative, namely, another vehicle that she uses on a regular basis. The appellant concedes that she has no problem with transportation. On that basis alone, I would not be able to find in the appellant’s favour.

28Even assuming there were no alternative to the impounded vehicle, and although the appellant previously had a heart surgery, she has not demonstrated the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.

29I appreciate that after this experience, the appellant will not allow her son to borrow her vehicle anymore. I also appreciate that the appellant’s son may not be in a position right now to help her cover the cost of impoundment. Still I would encourage the appellant to have that much needed conversation with her son about helping her through this difficult time period. After all, it was his action that has led to the challenges that the appellant is now facing.

30Based on the above, I find the appellant has not established there is exceptional hardship resulting from the impoundment.

ORDER:

31For 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.