Anny Katwaroo v. Registrar of Motor Vehicles, 2020 CanLII 72486

Licence Appeal Tribunal

Date: 2020-08-14

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:

Anny Katwaroo Appellant

and

Registrar of Motor Vehicles Respondent

Decision and Order

Adjudicator: Katherine Livingstone, Member

APPEARANCES:

For the Appellant: Anny Katwaroo, appellant

For the Respondent: Sonia De Santis, agent

Hearing Date: By teleconference on July 8, 2020

Overview

1The appellant appeals the impoundment of her vehicle which was detained and impounded on June 1, 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.

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

5On July 16, 2020 I issued a written decision finding the impoundment did not result in exceptional hardship. I confirmed the impoundment of the vehicle and indicated written reasons would follow.

Issues

6The issues to be determined are whether the appellant exercised due diligence and whether she established the impoundment resulted in exceptional hardship.

Evidence and Analysis

Background

7The appellant is a single working woman raising two children, one, a teenager and the other a young adult.

8On the day of the impoundment she had been visiting a friend who had a new born baby. The friend needed some supplies for the child, and he asked the appellant to drive him to get them. As the appellant was unfamiliar with the area of Toronto where they were travelling, she asked her friend to drive. While he was driving the appellant's vehicle he was stopped by police and it was determined his licence was suspended. The vehicle was impounded.

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.

9The appellant testified that before leaving her friend's residence to drive to the store, she asked him whether he had his licence on him. The friend replied in the affirmative. The appellant did not ask to see his licence.

10A very short distance from his residence they were stopped by the police. It was only when the police asked her friend for his licence that the appellant discovered his licence was suspended and had been for some time.

11The appellant said she would never have let her friend drive if she had known his licence was suspended.

12The appellant did not appear to know much about her friend's driving history other than he used to have a car similar to the one she presently owns. She said she had known her friend for about one year and before the day of the impoundment, she had never seen him drive.

Analysis on the issue of due diligence

13The 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…"

14As 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.

15In 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."

16Under 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.

The position of the parties

17Although the appellant relied on due diligence as a ground of appeal it became apparent during the hearing she understood there were difficulties with this position. She candidly admitted she did nothing more than ask if her friend had his licence on him. She said she had only been trying to help him access supplies for his child and she did not expect this to happen. She was relying on her friend's "good intentions". She said she know she "made a mistake" by not inquiring further about the state of her friend's licence.

18The respondent's agent argued the appellant did not satisfy the test for due diligence, in that it was insufficient to simply ask her friend if he had his licence on his person. She noted the appellant did not even take the step of asking to see the licence or take other steps to verify the existence of a valid licence.

19I agree with the respondent's submission. The appellant's cursory question to her friend was insufficient. The fact she had never seen him drive before only heightens her responsibility to ensure he was properly licenced.

20The fact the appellant was trying to assist her friend, that she is sorry she let him drive and she will be more vigilant in the future is not the test for due diligence. The appellant has not met the standard of due diligence.

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

21The appellant testified she lives in Toronto with her two children. She has a 76 year old father who lives some distance away who depends on her to assist with grocery shopping and attend to his health needs.

22Prior to the pandemic, she worked for several years cleaning houses, usually 2 or 3 per day. She relied on her vehicle to take her to her assignments, attend to her father and ferry her children to school and other activities. She described her vehicle as "her hand and foot".

23Since the onset of the pandemic the appellant has not been working, although on the day of the hearing she said she had received a phone message from her employer, which she expected would lead to a resumption of her work in the next few days.

24She has been receiving government sponsored support during the pandemic, in lieu of her salary. If she was to return to work, she would have to take a bus and/or streetcar and she would find this stressful. The added travel time may also result in only being able to clean one house instead of two or three. She said she is not required to carry cleaning product or equipment with her to her assignments.

25As her children have not been in school, first due to the pandemic and now due to summer holidays, the lack of a vehicle has not impacted on her ability to transport them to school.

26She said during the impoundment she has had to take a ten minute walk to get her groceries and then return home by taxi at a cost of eight or nine dollars.

27She goes to her father's house by street car which is a thirty minute ride. She goes to her father's apartment once a week on average. Her father recently required a trip to the hospital and was transported by ambulance. It is a fifteen or twenty minute walk to his doctor's and although there are presently no appointments set, her father is apparently ready and able to make the walk with her.

28Due to the pandemic she has been reluctant to have her children use public transportation so, while her vehicle had been impounded, they have stayed close to home. The appellant is also nervous about using public transit as she does not want to expose her father to the virus. She uses gloves and a mask while riding public transit.

29The appellant said the impoundment has resulted in upset to her, her children and her father. She said without her vehicle everything seems so much harder.

Analysis on the issue of exceptional hardship

30Section 10 of Regulation 631/98 sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.

31Pursuant 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".

32Section 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.

33If this initial step of the test for exceptional hardship is met, the appellant must then show, on a balance of probabilities, that 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.

34I am satisfied the appellant had an alternative to the impounded vehicle during the period of the impoundment. She has used taxis, public transportation and walking to address the issues of everyday living for her and her family.

35I am further satisfied the impoundment has not resulted in a threat to the health and safety of any person ordinarily transported by her vehicle.

36Although during the pandemic public transportation has posed a heightened health risk, the appellant has been diligently dealing with this risk by taking the recommended precautions of a mask and gloves.

37She has been able to attend to her father. There have been no missed medical appointments or other health needs as it relates to her father.

38Additionally, she has not required her vehicle for work purposes during the time of the impoundment as she has not been working, so there is no financial or economic loss.

39While 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 rise to the level of exceptional hardship.

Order

40Pursuant to subsection 50.2 (5) of the Highway Traffic Act, the appeal is dismissed and the impoundment of the vehicle is confirmed.