Licence Appeal Tribunal
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:
Brenda Marshman Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION and ORDER
Panel: Katherine Livingstone, Member
Appearances:
For the Appellant: Self Represented
For the Respondent: Sanjay Kapur, Agent
Place and date of hearing: By teleconference, October 22, 2020
Overview
1The appellant appeals the impoundment of her vehicle which was detained and impounded, pursuant to s 55.1 of the Highway Traffic Act R.S.O. 1990 c. H.8 ( the HTA), on September 17, 2020, as a result of being driven by a person whose licence was suspended.
2The 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
50.2 (3) (d) that the impoundment will result in exceptional hardship.
3On October 22, 2020, I issued a written decision finding the impoundment of the appellant’s vehicle would result in exceptional hardship as defined in Regulation 631/98 of the Highway Traffic Act and I ordered the release of her vehicle. I indicated written reasons would follow.
Issues
4The issues to be determined are: whether the appellant exercised due diligence and whether she has established the impoundment of her vehicle would result in exceptional hardship.
Results
5Based on the evidence presented at the hearing, and for the reasons given below, I find the appellant fails on the issue of due diligence but succeeds on the issue of exceptional hardship.
Evidence and Analysis
Background
6The respondent presented documentary evidence which was not contested by the appellant. The documents indicate the appellant is the registered owner of a 2017 motor vehicle. On September 17, 2020, that vehicle was impounded after police stopped the driver of the vehicle, Keith Bickers, and determined he was a suspended driver. In fact, Mr. Bickers has been a suspended driver since March 2002.
7The appellant testified during the hearing. She said she has recently moved to Barrie, after living for several years in Toronto.
8On September 17, 2020, Mr. Bickers, a long time friend also living in Barrie, asked to borrow her vehicle. Her understanding was he would have the car for about an hour before returning it. Before lending him the car she testified she asked to see his licence. She said he took out something from his wallet which she assumed was a valid licence, as he drove a truck for work. She said she did not look at it but then said, “the name and address and everything seemed fine with it”.
9The appellant said she suffered from medical conditions which required not only prescribed medication but also regular visits to the doctor and to the physiotherapist, both of who are located in Toronto. Specifically, she has fibromyalgia, suffered a stroke in March of 2020 and is waiting for additional scans to assist with further diagnosis. Her scans have been cancelled due to the ongoing pandemic.
10She has trouble walking and moving generally and relies on regular physiotherapy to ease her considerable discomfort. She said the regular “physio keeps my body moving”.
11Since the impoundment of her vehicle she has missed four of five scheduled physiotherapy appointments. Her brother, who lives west of Toronto, drove her to one. On another occasion she arranged for a friend to drive her, however the friend cancelled at the last moment. She rented a car but concluded after paying $120 for a two day rental that she was not going to be able to afford rental fees for the remaining period of the impoundment. She is presently in receipt of support from the Ontario Disability Support Plan.
12Although it causes significant discomfort, she walks to the grocery store. She missed her monthly doctor appointment, but was able to have her family doctor fax her prescriptions. She said the effect of her missed physio appointments has been increased mobility problems, which necessitates baths several times a day to attempt to alleviate the pain. She also has trouble sleeping due to the pain. Her medication is of some assistance but she “needs the actual physical part of it to keep my body going”.
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…”, pursuant to s. 50.2 (3) (c) of the HTA.
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 take reasonable steps to ensure it is not driven by those who do not have a valid driver’s licence.
17I have some difficulty with the veracity of the appellant’s evidence in terms of her explanation of her actions with respect to requesting and inspecting Mr. Bicker’s licence before she gave him the car. She started off saying she did not look at the licence but then said she did see a name and address.
18The appellant’s evidence at its highest is she took a cursory look at something she thought was licence and “it seemed okay”. Obviously, given the fact Mr. Bickers has been a suspended driver for the better part of 20 years and any document he did show her would have been very dated, the review of the document by the appellant was less than satisfactory.
19I find her actions do not meet the test of due diligence and I dismiss this ground of appeal.
Analysis of the issue of exceptional hardship
20Section 10 of Regulation 631/98 sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.
21Pursuant 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”. Section 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.
22If 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.
23While having some difficulty with the nature of the appellant’s evidence with respect to due diligence, I accept her evidence with respect to the hardship the impoundment of her vehicle has caused.
24Dealing with the initial step of the test, the appellant has taken steps to find alternatives to her impounded vehicle. She relied on her brother on one occasion, who came from west of Toronto to Barrie in order to make sure she made a physiotherapist’s appointment in Toronto. She attempted to make arrangements for a friend to take her to another one. However, those arrangements fell through at that last moment. She tried renting a car but found the expense prohibitive given her current source of income. She has walked to get groceries even though it causes her considerable pain.
25As it relates to the appellant’s ability to attend at medical appointments, I find there is no alternative to her impounded vehicle. I am also satisfied the appellant has shown, on a balance of probabilities, that there is a threat to her health and safety as a result of there being no alternative to her vehicle.
26Without her vehicle she has missed several physiotherapy appointments, which has resulted in a decrease in her mobility and an increase in her pain. She has also missed a doctor’s appointment and although she was able to address the issue of her medications over the phone, it was clear her regular doctor’s appointments are something that assist with her health and well-being.
27I am satisfied the appellant has met her onus with respect to the ground of exceptional hardship.
Order
28Pursuant to s. 50.2 (5) of the Highway Traffic Act, the appeal is allowed, and I order the release of the motor vehicle.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: December 1, 2020