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:
Rahim Noormohamed
Appellant
and
Registrar of Motor Vehicles
Respondent
Decision and Order
Adjudicator:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Rahim Noormohamed
For the Respondent:
Sanjay Kapur, Agent
Heard by Teleconference:
July 27 and 30, 2020
Overview
1The appellant, Rahim Noormohamed, appeals the 45-day impoundment of his motor vehicle on two grounds: a) he exercised due diligence in attempting to determine his driver’s licence was not under suspension at the time his vehicle was detained in order to be impounded and b) on the basis of exceptional hardship.
2The vehicle was impounded on May 29, 2020, after the appellant was pulled over by the police. The impoundment was pursuant to s. 55 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the HTA). This section allows a police officer, in certain circumstances, to impound a vehicle.
3The impoundment period ended on July 14, 2020. The appellant has retrieved his vehicle.
4The hearing commenced by teleconference on July 27, 2020. The hearing was adjourned at the request of the appellant in order for him to attend to a family issue and was reconvened via teleconference on July 30, 2020.
Issues
5The issues to be determined are whether the appellant established he exercised due diligence in attempting to determine his licence was not under suspension at the time it was impounded and whether the impoundment resulted in exceptional hardship.
Result
6I find in the circumstances before me the appellant failed to meet his onus on both grounds, and I confirm the impoundment of the vehicle.
Agreed Facts
7At the commencement of the hearing I sought to confirm the facts the parties agreed upon during the case conference, as outlined in the Order of the Tribunal dated July 20, 2020.
8At the hearing the appellant agreed to the following facts:
a. At the time of the impoundment the appellant was the owner of the impounded vehicle.
b. At the time of the impoundment the appellant’s driver’s licence was under suspension.
c. Both the appellant and his spouse were laid off from their jobs in March 2020 due to the Covid-19 virus.
d. Neither the appellant nor his spouse have returned to work since March.
e. The appellant and his spouse have each been in receipt of CERB benefits of $2000 per month, for a household total of $4000 per month.
f. The appellant’s major ongoing household monthly expenses are:
i. Rent and maintenance fees -$2500/month
ii. Food and groceries -$650/month
iii. Two cell phones - $160
iv. Car payments - $176 bi-weekly.
Preliminary Issues
9As reflected in the Tribunal Order of July 20, 2020, initially the appellant was only relying on the ground of exceptional hardship. However, at the commencement of the hearing the appellant advised he also wished to rely on the ground of due diligence on the basis of steps he took to ascertain the state of his licence in the months leading up to the impoundment.
10The respondent was opposed to me considering the additional ground of due diligence as he had, understandably, only been prepared to address the issue of exceptional hardship. However, after hearing submissions from both parties, I determined I would hear evidence on both grounds.
11Additionally, although the appellant indicated at the case conference he would agree at the hearing he was the driver of the vehicle, he was now not prepared to make that admission. He wanted to contest the legality of the impoundment on the basis he was only parking the car and not driving it.
12The position of the respondent was the appellant’s submission the car was not being driven at the time of the impoundment is not one of the grounds of appeal as set out in HTA and therefore is outside my jurisdiction. I am persuaded by the respondent’s arguments.
13In reviewing the HTA, the language in section 50.2 (3) is very clear;
The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may set aside the order to impound are (emphasis added),
(a) that the motor vehicle that is subject to the order was stolen at the time in respect of which the order was made;
(b) that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;
(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 in respect of which the order was made was not then under suspension; or
(d) that the order will result in exceptional hardship. 1997, c. 12, s. 5; 1999, c. 12, Sched. G, s. 24 (12).
14The Registrar can only order a release of the motor vehicle if one of the above grounds has been met. Therefore, the issue of whether the appellant was driving the vehicle at the time of the impoundment is not within my jurisdiction.
Evidence and Analysis
Background
15The appellant testified he was stopped while in his vehicle on May 29, 2020 and, after an investigation, his vehicle was impounded. He acknowledged his licence was suspended in 2010 after a conviction for driving while impaired. He also agreed that he did not complete the remedial program required after such a conviction before a licence can be reinstated. He thought his licence was reinstated in 2013 and suspended again in 2015. With some seeming reluctance he agreed he had not been licenced since at least 2015.
16In addition to the suspension for the Criminal Code conviction, the appellant’s driver’s licence expired in 2018. When asked if he made any attempt in 2018 to renew his licence, he said the most recent attempt was in February 2020 when he went to the court and asked for an extension to pay his fines. He said the extension was granted.
17The appellant also said he contacted Service Ontario in February 2020 for the purpose of renewing his licence. He said he asked them what he needed to do to lift the suspension of his driver’s licence. Service Ontario confirmed his suspension although they did not provide him with all the details. He was told to contact the driver improvement office.
18The appellant said he also went to the courts, first in February prior to going to Service Ontario and then again at the end of March. He went to the courts to get information on how to get an extension on his outstanding fines. He was told at the court office the step after the payment of any fines would be to pay a reinstatement fee. He was advised to contact the Ministry of Transportation (MTO) in this regard.
19The appellant said he did nothing further until May 2020, when he contacted MTO by phone. He said he called them on several occasions in an attempt to clarify what he needed to do, however he was met with voice messages that said the MTO offices were closed due to the pandemic. He said he waited from March to May to contact the MTO because he needed money for the fines and reinstatement fees, and he was short of funds.
20He agreed with the respondent’s agent that during this time and up to the time of the impoundment he was aware of the fact of his suspensions. In response to my question asking whether he was aware his licence was suspended, he said he had an “inkling”.
21The appellant testified that both he and his partner lost their jobs at the beginning of the pandemic and as a result money has been tight the last several months. He said during the time his vehicle was impounded he had to rely on public transit rather than have his wife drive the car. He did his shopping at Walmart, Metro and the Great Canadian Super Store, using public transit and taxis. As well as shopping for himself and his wife, he also shopped for his parents who are elderly and rely on his assistance for many everyday chores. His parents reside about a 15 minute drive from the appellant’s home.
22He said his necessary reliance on public transit put himself and his family at risk. As a result of the impoundment, he “was exposed to the threat that was out there”.
23He also said the impoundment and subsequent release of his vehicle cost him $4000.
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.
24The intent of vehicle impound provisions under the Highway Traffic Act, R.S.O., 1990, c. H.8 is to promote public safety by preventing unlicenced drivers from operating motor vehicles. Pursuant to s. 55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for certain reasons.
25Appellants have the onus to establish, on the balance of probabilities, that any of the grounds in s 50.2(3) have been met.
Analysis on the issue of due diligence
26The due diligence ground of appeal requires the appellant to prove, on a balance of probabilities, that he “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…”
27As 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 he took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.
28In 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.”
29The appellant may have undertaken some efforts, in the period between February 2020 to May 2020, to determine what steps he needed to take to reinstate his licence thereby permitting him to drive a vehicle. However, it is very clear on all of the evidence the appellant knew at the time he was stopped by the police his licence was suspended and /or expired, and he was not legally permitted to operate a motor vehicle.
30His steps to address the outstanding matters regarding his licence may have been frustrated by the office closures resulting from the pandemic. He may have been able to get clearer answers and direction on how to reinstate his licence if MTO operations had been running normally. That is not the issue before me. The issue is whether he exercised due diligence in attempting to determine whether his licence was not suspended. The steps he did take confirmed to him his licence was suspended and yet he got behind the wheel of his vehicle.
31The appellant has not met the standard of due diligence.
Issue #2 Did the impoundment of the vehicle result in exceptional hardship
32Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.
33Pursuant 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”.
34Section 10(4) then sets out what an appellant must show in order to meet this initial prong of the test:
(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.
35If this initial step of the test for exceptional hardship is met, then I must consider whether on a balance of probabilities, 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.
36The only evidence I heard about the impact of the impoundment, as it related to the ground of exceptional hardship, was from the appellant himself. During his testimony he said he had had to take public transit and taxis during the time of the impoundment in order to do the shopping for his family and his parents.
37He did not give any indication anyone else in his family had taken responsibility for the shopping. There was no evidence any of his family missed medical appointments or other necessary appointments resulting in a threat to their health and safety as a result of the impoundment.
38When he was out shopping, he acknowledged he took appropriate precautions, given the pandemic and that he shopped in places where the same precautions were undertaken. Although the appellant emphasized more than once during his evidence that the impoundment put him and his family at risk, there was a dearth of evidence in this regard.
39It must also be noted the impoundment resulted from the appellant operating the vehicle while unlicenced. (emphasis added) The regulations speak to the issue of hardship where the hardship is asserted by the driver/owner of the vehicle:
In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an educational or training opportunity to any person. O. Reg. 456/10, s. 3.
The Tribunal may consider the criteria set out in clauses (b), (c) and (d) if the owner demonstrates that,
(a) 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). O. Reg. 456/10, s. 3. (emphasis added).
40I find there were alternative methods of transportation to the impounded vehicle and the appellant was able to access them without endangering the health and safety of his family. I also find no merit in the appellant’s argument that the impoundment caused him undue hardship, as he was the suspended driver that caused the impoundment.
Order
41Pursuant to subsection 50.2 (5) of the Highway Traffic Act, the Appeal is dismissed, and the impoundment confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: September 22, 2020