Jesse Stokes v. Registrar of Motor Vehicles, 2020 CanLII 94728

Date: 2020-11-17

File Number: 12959/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:

Jesse Stokes

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: Jesse Stokes, Self-represented

For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: By Teleconference November 16, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on November 16, 2020 to consider the appellant’s appeal of the 45 day impoundment of his 2012 GMC, Sierra (the “vehicle”). The vehicle was impounded on October 27, 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 he 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.

7Jesse Stokes, the appellant, testified that he owns a roofing company, and the driver of the vehicle at the time of the impoundment, Edward Carter, was an employee. The appellant stated that he inspected Mr. Carter’s driver’s licence when he hired him approximately six years ago and also observed it, at some point, in early 2020. He admitted that he did not inspect the licence closely or check with the Ministry of Transportation to confirm that it was valid at the time of hire or in early 2020. He also admitted that no verifications of Mr. Carter’s driver’s licence were made on or shortly prior to the date on which the vehicle was impounded.

8The appellant testified that Mr. Carter was not insured to drive the vehicle because driving was not one of his employment responsibilities. He stated that he and his spouse are the ones who drive the vehicle, and they are both named in the insurance policy for the vehicle. Mr. Stokes explained that on the date of the impoundment their child care service did not arrive at the scheduled time, and his spouse asked Mr. Carter to drive the vehicle for her so she could look after their son.

9The appellant stated that Mr. Carter never disclosed to him that his licence was under suspension. He emphasized that his spouse never would have allowed Mr. Carter to drive the vehicle if she had known he did not possess a valid driver’s licence. The appellant also stated that Mr. Carter’s employment was terminated after the impoundment of the vehicle.

10Relying on an employee to be forthright about the status of his licence does not constitute due diligence, nor does simply observing the appellant’s driver’s licence at the time of hire or several months before authorizing the employee to drive the vehicle. The appellant would have had to conduct additional checks to verify the status of his driver’s licence, such as confirming the status on the Ministry of Transportation’s website or requiring the appellant to provide an Extended Driver Record Search for Criminal Convictions, to satisfy the requirements of due diligence.

11Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 50.2(3)(c) of the Act.

Exceptional Hardship

12Section 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 s.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.

13The appellant testified that he owns more than one vehicle, but the vehicle which was impounded is the only one with a built-in ladder rack. He stated that, after the impoundment of the vehicle with the ladder rack, he looked into ordering a second ladder rack but they are backordered. He indicated that he has been able to do small jobs, during the period of impoundment, with a 14 foot ladder, but he requires the ladder rack for bigger roofing jobs. He also stated that he has lost some jobs and has had to delay other jobs.

14There is no doubt that the appellant has been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because he has another vehicle which he can use to do smaller roofing jobs and repairs during the period of impoundment.

15Even if I were to find that there was no alternative to the impounded vehicle with a built in ladder rack, under s. 10(3) of the Regulation the Tribunal can only consider financial or economic loss if, among other things, the loss will be “immediate, significant and lasting”. The appellant did not introduce any evidence to show that the financial impact would be lasting and in fact testified that he has been able to postpone certain roofing work.

16For the above reasons, I find that the appellant has not established exceptional hardship as defined under the Regulation.

ORDER:

17Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.