Amanda M. Davies v. Registrar of Motor Vehicles, 2020 CanLII 94726

Date: 2020-11-18

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:

Amanda M. Davies

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

John Kromkamp, Member

APPEARANCES:

For the Appellant:

Amanda Davies and Raymond Frank, Representative

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

November 12, 2020

Overview

1Amanda Davies is the registered owner of a 2008 Honda that was impounded on October 4, 2020 for the statutory 45 days when a Mr. Wallace Marshall was stopped and was found to be driving her car without a licence. Ms. Davies appeals on the basis that while she is the registered owner of the vehicle, in the circumstances she is suffering exceptional hardship due to the impoundment. Further she appeals on the basis that she exercised due diligence in attempting to determine that the licence of the driver was not then under suspension. She takes the position that she should not have to pay the towing and impoundment fees. Ms. Davies was represented by her father, Mr Raymond Frank, who gave evidence and made submissions on her behalf.

2For the reasons that follow I allow the appeal and pursuant to s 50.2(5) of the Highway Traffic Act, order the Registrar to release the motor vehicle.

3Mr Kapur adduced evidence that Mr Marshall’s licence had been suspended for some time, and that Ms. Davies was the registered owner of the vehicle. Additional motor vehicle registration records, confirmed by the evidence of Mr. Raymond in chief and cross examination, established that Ms. Davies owns another car and resides with her parents who also have automobiles available to her. The evidence also established that Ms. Davies had not investigated Mr Marshall’s licence situation before he had driven the 2008 Honda.

4As a result, Mr. Kapur submitted that the appellant could not rely on either ground of appeal as she could not fit within the strict wording of the legislation.

Exceptional Hardship

5The Act and its regulations provide a very narrow scope for successfully pleading exceptional hardship as a ground of appeal. Although the evidence showed that Ms. Davies has suffered emotional trauma arising out of the circumstances of this case and is now under a doctor's care, the legislation recognizes exceptional hardship a ground of appeal only in circumstances where no alternative means of transportation is available to the appellant. Here the evidence discloses that the appellant had another vehicle and access to her parents’ vehicles. The hardship she is suffering is not related to the lack of a vehicle but rather to the surrounding circumstances of this case. Because the absence of alternatives to the impounded vehicle is a condition precedent to arguing exceptional hardship, the ground appealed must fail.

Due Diligence

6Mr Kapur submitted that as Ms. Davies had not specifically taken steps to determine if Mr Marshall was licenced, she could not be taken to have exercised due diligence as required by the legislation.

7The grounds of appeal enumerated in S 50.2(3) of the Act indicate that liability of the registered owner to pay the impoundment fees is not absolute. The legislation provides that if the owner exercised due diligence, they are not to be held liable for the costs. Due diligence is measured by what a reasonable person would do in the circumstances of each individual case.

8Miss Davies and her husband Peter were married for approximately 8 years. They were a two-car family. She drove a 2013 Honda while he used the 2008 Honda. During that time, Ms. Davies saw no evidence that there were any problems with her husband’s licence to drive, and she physically saw it as recently as April 2020. The respondent did not adduce any evidence to suggest otherwise and did not take the position that his licence was suspended at any relevant time

9Unfortunately, the marriage suffered a complete breakdown and the spouses separated. The evidence suggested that the separation occurred in about June 2020. Peter kept the 2008 Honda and moved from the family home.

10The parties signed a legally binding separation agreement in August of 2020. A copy of the relevant portion was filed as part of the appellant’s exhibit. It revealed that the parties dealt with ownership of the family automobiles. Ms. Davies was to keep the 2013 Honda, while Peter would have the 2008 Honda. As part of the agreement, he was to confirm that he had obtained insurance in his name and thereafter, Ms. Davies would sign over the registration to him. Pending this transfer, she continued to make insurance payments.

11Unfortunately, Peter has been slow in fulfilling his part of the agreement and as a result the appellant is still the registered owner of the vehicle. Additionally, the evidence was that it has been difficult to communicate with Peter by phone or otherwise and that his current residential address is unknown. The appellant has attempted but not been able to contact him to finalize the details regarding registration of the title in his name. Peter has also incurred parking and other costs that have been billed to the appellant. As far as the evidence disclosed, he had continued to exercise possession and control over the vehicle to the exclusion of the appellant

12There was no evidence as to how Mr Marshall came to have the vehicle. Ms. Davies does no know him, has never heard of him, and did not give him permission to drive the vehicle on the day in question or at any other time.

13Although Peter is the de facto ‘owner” of the vehicle, the Act defines owner as the registered owner. As a result, although Peter exercised total control over the vehicle, the appellant remains the owner for the purposes of this appeal

14Under the Act, to avoid liability for the costs, the evidence must show 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. In the circumstances of this case, to require Ms. Davies to have checked and verified the driver’s license of Mr Marshall, a person she did not know existed and who she did not authorize to drive a vehicle that was under the control of her ex husband is unreasonable. The exercise of due diligence does not require a person to do the impossible.

15On the facts of this case, Ms. Davies did what a reasonable person would have done in the circumstances surrounding the marital breakdown. She was to keep “her ‘car while he kept “his” car. Registration was to be transferred soon. When there was a delay, she attempted to follow up but was unable to locate her ex-husband. The prospect of renewing litigation was not put to her, but the evidence of her emotional and health issues suggests this was not a reality at this time. As a result, there was nothing more she could reasonably do to attempt the to control or influence Peter’s control over the vehicle and its potential users.

16In the circumstances, I am satisfied that the appellant exercised due diligence in attempting to ensure that the vehicle was not driven by an unlicensed driver. As a result, I order the Registrar to release the vehicle.