File Number: 12888/MVIA
Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act
Between:
Kristina Crowder
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel
APPEARANCES:
For the Appellant: Kristina Crowder, Self-represented
For the Respondent: Sanjay Kapur, Agent
Held by Teleconference: October 19, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on October 19, 2020 to consider the appellant’s appeal of the 45 day impoundment of her 2010 Ford, Escape (the “vehicle). The vehicle was impounded on September 11, 2020 because it was being driven by a person whose licence was under suspension. The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle.
ISSUES:
2The issues to be determined are:
(i) Did the appellant exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence?
(ii) Did the impoundment result in exceptional hardship?
CONCLUSION:
3On the evidence before me at the hearing, I find that the appellant did not exercise due diligence and that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(c) and (d) of the HTA.
LAW AND ANALYSIS:
4The owner of a vehicle that has been impounded pursuant to s. 55.1(1) of the HTA, may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
5There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the grounds of due diligence and exceptional hardship.
Due Diligence
6In order to establish that the appellant exercised due diligence, within the meaning of section 50.2(3)(c) of the HTA, the appellant must prove that she made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was impounded.
7The appellant testified that she allowed her former boyfriend, Eyson Jacob, to drive her vehicle on the day the vehicle was impounded. The appellant stated that she had observed his driver’s licence on prior occasions and believed it to be valid. She indicated that she also observed him use his driver’s licence as identification at the L.C.B.O. store and when checking into a hotel. She testified that she had no reason to doubt that his license was valid. The appellant also stated that Mr. Jacob is an alcoholic.
8The appellant stated that she does not remember the details on the licence and admitted that she did not look at it closely. She acknowledged that Mr. Jacob had lied to her about his age, based on the date of birth on his driver’s licence. The appellant could not recall the expiry date on the licence. The appellant stated that following the impoundment of her vehicle she discovered, through a Google search, a Ministry of Transportation (“MTO”) website on which one can check the status of a person’s driver’s licence. She indicated that she was not aware of the website prior to the incident and does not believe it is common knowledge.
9Mr. Kapur, the agent representing the respondent, stated that based on the Extended Driver Record Search for Eyson Jacob, which was introduced into evidence, the last driver’s licence issued to him by the MTO would have had an expiry date of May 13, 2016. Mr. Kapur submitted that the hotel and L.C.B.O. store that checked Mr. Jacob’s licence, in the presence of the appellant, may not have been concerned about the expiry date on the license; for their purposes, they may only have been concerned that the person was 19 years of age or over and/or that the photograph resembled the person presenting it.
10At a minimum, due diligence would involve closely inspecting a person’s driver’s licence before allowing him or her to drive one’s vehicle. By the appellant’s own admission, she did not inspect Mr. Jacobs’ licence closely. In this case, the revelation that Mr. Jacobs lied to her about his age should have been a “red flag”; specifically, it should have prompted the appellant to carefully examine the licence for other discrepancies and to make additional inquiries into the status of the licence, before allowing him to drive her vehicle.
11The Tribunal is not satisfied that the driver’s license the appellant observed had a valid expiry date, given her admission that she did examine it closely and given that the last licence issued to him by the MTO would have expired in 2016. The appellant was able to access the MTO’s website for verifying the status of drivers’ licences after the incident. In the circumstances of this case, due diligence would have required researching and verifying the status of Mr. Jacob’s driver’s licence on the MTO website, or by requiring him to produce an extended driver’s record search, in advance of allowing him to drive her vehicle.
12Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 50.2(3)(c) of the Act.
Exceptional Hardship
13Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I 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 I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.
14The appellant testified that she lives with her dog in Oshawa and is employed as a residential counselor at a group home, for adolescent boys with autism, in Scarborough. She indicated that she has been able to make accommodations to get to and from her place of employment on most days but emphasized that it has been extremely inconvenient and stressful. The appellant testified that she was able to borrow her mother’s vehicle for approximately two weeks. She testified that she also arranged for a co-worker, her mother and her aunt to drive her to and from work on other occasions. She stated that her mother resides in Stouffville and works in Markham, and her aunt resides in Oshawa. She also testified that, on a couple of days, she has had to obtain permission from her employer to use vacation time, as she did not have a way of getting to and from work.
15The appellant testified that taking public transportation is not be a viable option as it would take too long, and she cannot leave her dog alone for such lengthy periods of time. She indicated that her dog has already damaged her apartment because she needed to leave him alone longer than usual, during the period of impoundment. She stated that she cannot afford to use UBER, even for part of the commute, to reduce the amount of time spent on public transportation.
16The appellant testified that she does not have enough money to pay the impoundment fees. She stated that even before the impoundment of her vehicle, her expenses exceeded her employment income. She provided copies of her most recent bank statement, VISA bill and pay stub, to substantiate her testimony.
17There is no doubt that the appellant and her mother have been very inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because she has been able to make accommodations and has had alternative modes of transportation available to her during most of the period of impoundment.
18Since the appellant did not satisfy the test that there was no alternative to the impounded vehicle, it is not necessary for me to consider whether she would meet the other provisions of s. 10 of the regulation.
ORDER:
19Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: October 20, 2020