Gomes v. Registrar of Motor Vehicles, 2020 CanLII 95848

Date: 2020-12-01

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:

Gomes

Appellant

and

Registrar of Motor Vehicles

Respondent

Decision and Order

Adjudicator: Katherine Livingstone, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, agent

Hearing Date: By teleconference on October 16, 2020

Overview

1The appellant appeals the impoundment of his vehicle which was detained and impounded on August 30, 2020, pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c H.8 (the HTA), as a result of being driven by a person whose licence was suspended.

2The owner of an impounded vehicle may appeal the impoundment pursuant to s.50.2 of the HTA and request the Tribunal order the Registrar to release the vehicle.

3The appellant relies on the following three grounds of appeal pursuant to s. 50.2 of the HTA:

50.2(3) (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

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 or subject to the condition described in paragraph 2 of subsection 55.1 (1); and

50.2(3) (d) that the impoundment will result in exceptional hardship.

4On October 20, 2020 I issued a written decision finding the appellant had not met his onus on any of the three ground he raised in the appeal. Specifically, I found the appellant’s vehicle was not stolen at the time of the impoundment, he did not exercise due diligence and the impoundment did not result in exceptional hardship. I confirmed the impoundment of his vehicle. I indicated written reasons would follow.

Issues

5The issues to be determined are; whether the appellant’s vehicle was stolen at the time of the impoundment, whether the appellant exercised due diligence and whether he established the impoundment resulted in exceptional hardship

Evidence and Analysis

Background

6The appellant lives with his parents and siblings in Oshawa. He is employed in the construction business and works from contract to contract. He is a friend and sometime co-worker of Sherwin Barnes.

7The appellant testified that in the days before August 30, 2020, he lent Mr. Barnes his vehicle, as Mr. Barnes’ own vehicle was in the shop for repair. In the early hours of August 30, 2020, the appellant was awakened from sleep by police who told him his car had been impounded.

8The appellant later learned his vehicle had been driven from Mr. Barnes’ residence by Mr. Barnes’ nephew, Adam Williams, who wanted to go to a party. Mr. Williams in turn allowed his friend, Mr. Preece, to drive the car on the way home from the party.

9Early in the morning of August 30,2020, while operating the appellant’s vehicle, Mr. Preece was pulled over by police. The vehicle was impounded as Mr. Preece’s driver’s licence was suspended.

10The vehicle was impounded for 45 days. At the time of the hearing the impoundment period had ended, however the appellant advised the car was still impounded as he was awaiting the outcome of the hearing.

Issue #1 – Whether the vehicle was stolen at the time of the impoundment

11The appellant testified at the hearing, as did Mr. Barnes and Mr. Williams.

12I found the evidence of the appellant to be vague and inconsistent in a number of areas. I am aware I can accept some, all, or none of a person’s evidence. On balance, aside from the appellant’s evidence that he lent his vehicle to Mr. Barnes at some point in time prior to the impoundment, there is little else in the appellant’s evidence I accept.

13His testimony surrounding when and why he gave the vehicle to Mr. Barnes shifted from his initial telling of his recollection of events during his in chief evidence, to the end of his cross examination.

14The appellant initially testified that, after asking Mr. Barnes to show him his licence to verify he was licenced to drive, he lent the car to Mr. Barnes as Mr. Barnes’ vehicle had a flat tire. Later in cross-examination he said the axle on the vehicle was also broken. The owner, Mr. Barnes testified only that the vehicle needed repair to the front end and as he wasn’t a mechanic, he couldn’t explain further what was wrong with the vehicle. He said nothing about a flat tire.

15When the appellant testified, he did not initially say how long he agreed to lend his car to Mr. Barnes, stating only that he lent him the car so Mr. Barnes could get to work.

16In cross examination the appellant’s evidence on how long he was intending to lend the vehicle varied from “a few days”, to “under five days”, to “just for the weekend”. At one point he testified he’d lent the vehicle to Mr. Barnes two or three days before the impoundment. At another point he said he gave it to Mr. Barnes on the Friday afternoon before the impoundment. The evidence of the respondent was the vehicle was impounded just after midnight on Sunday morning.

17The appellant testified he was awakened by the police and told his vehicle was impounded. In answer to questions posed by the respondent, the appellant agreed he did not ask the police for particulars about the impoundment. I found this lack of interest in the circumstances surrounding the impoundment to be inconsistent with the appellant’s assertion the car was stolen at the time it was impounded. If, in fact, he had checked Mr. Barnes’ licence before lending him the car and satisfied himself Mr. Barnes was a licenced driver and being unaware that anyone else would be driving his vehicle, it is very curious the appellant would not seek answers from the police as to why the vehicle was impounded.

18Mr. Barnes testified he had borrowed the appellant’s vehicle on the Friday before the impoundment, after the appellant had asked to see his licence. Mr. Barnes said he left the vehicle in his driveway and at some point, while he was sleeping, his nephew, Mr. Williams, took the vehicle without his consent. Mr. Barnes said he had not seen Mr. Williams at his house before he took the vehicle.

19This evidence was in stark contrast to Mr. Williams who testified he had been visiting at his uncle’s house for a couple of hours before his uncle went to bed and Mr. Williams took the vehicle.

20Mr. Williams testified he took the car, after finding the keys in his uncle’s house, because he wanted to go to a party. Mr. Williams said he let his friend drive back from the party because Mr. Williams had been drinking.

21All three witnesses testified Mr. Williams took the vehicle without the consent of either the appellant or Mr. Barnes. All testified Mr. Williams then let his friend Mr. Preece drive the vehicle.

Analysis of the issue of whether the vehicle was stolen at the time of the impoundment

22The intent of the HTA’s impoundment scheme 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.

23As noted earlier, the owner of an impounded vehicle may appeal the impoundment pursuant to s. 50.2 of the HTA and request the Tribunal order the Registrar release the vehicle. The appellant has the onus to establish, on the balance of probabilities, that the grounds of appeal he has raised have been met.

24The HTA does not define the term “stolen”. The test for whether a vehicle is stolen is highly fact specific. The Tribunal has traditionally held that there is no requirement the car be reported stolen to the police, but this is one of the factors that can be considered in concluding it was stolen. At the very least, I must find the appellant did not implicitly consent or reasonably expect the vehicle to be taken see for example Robert Dallas v. Registrar of Motor Vehicles, 2020 CanLII 37623 (ON LAT).

25In the present case I have significant difficulties with the veracity of the evidence I heard with respect to the circumstances surrounding not only the giving of the vehicle to Mr. Barnes by the appellant, but also surrounding the taking of the vehicle by Mr. Williams.

26I find the combined evidence of the three witnesses to have an air of collusion. While initially consistent, when areas of concern were examined in more detail, the totality of their evidence lacked the ring of truth.

27Additionally, the appellant did not ask questions of the police when they woke him in the night to report the impoundment. He did not report the vehicle stolen. This is troubling.

28As such I am unable to conclude the vehicle in question was stolen and I find the appellant has not met his onus on this ground.

Issue #2 – Whether the owner of the motor vehicle exercised due diligence in attempting to determine the driver’s licence was not then under suspension.

29The appellant testified at the time he lent his vehicle to Mr. Barnes he asked to see Mr. Barnes’ licence, as he had heard before about the necessity of ensuring someone was properly licenced prior to giving them your car.

30Mr. Barnes confirmed the appellant had him show his driver’s licence before he took the car.

Analysis on the issue of due diligence

31The 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”.¹

32In order to establish the due diligence ground of appeal, a number of separate elements must be established. If any of these elements is missing this ground of appeal is not available to the appellant.

33First, it must be established the owner of the impounded vehicle has exercised the necessary due diligence. Second, and related to the first point, it must be established that the due diligence exercised by the owner was in relation to the “driver’s licence of the driver of the motor vehicle at the time it was detained” (emphasis added). I am bound by the wording of the HTA.

34It is not contested that the owner of the impounded vehicle is the appellant and the driver at the time of the impoundment was Mr. Preece. The evidence is the appellant did not take any steps to check Mr. Preece’s driver’s licence.

35Under the HTA, one of the multiple obligations imposed upon the owner of a motor vehicle is to ensure their vehicle is not driven by persons who do not have a valid driver’s licence.

36Even if I accepted the appellant’s evidence that he asked to see Mr. Barnes’ licence before lending him the car, which, given my previously voiced concerns about the appellant’s truthfulness, would be a difficult conclusion to reach, I am bound by the strict wording of the HTA. Given the appellant did not conduct any due diligence with respect to Mr. Preece, the driver of the vehicle at the time of the impoundment, this ground of appeal is not available to the appellant.

37I find the appellant has not met his onus on this ground of appeal.

Issue #3 – Whether the impoundment will result in exceptional hardship

38The appellant testified he lives in Oshawa with his parents and four of his five siblings. His parents do not own a car. The appellant’s parents do not rely on the appellant’s vehicle for transportation. One of his siblings has a car, however she is very guarded about letting anyone use it.

39The appellant said his father’s health is compromised and he was worried his father will contract the COVID 19 virus if the appellant relies on public transportation.

40The main thrust of the appellant’s argument with respect to exceptional hardship was that, during the 45 days of impoundment, the appellant was forced to take public transit to work which resulted in longer periods to get to work and also put his father’s health at risk, due to the nature of public transit in the time of the pandemic.

41Again, I was troubled by the inconsistencies and vagueness in the appellant’s evidence in this regard. In his Notice of Appeal the appellant outlined difficulties he was encountering as “I work 40 minutes away from my house and the Durham transit system does not go directly to my work”. However, in his evidence in chief the appellant said his work took him to places such as Hamilton and that if he couldn’t get to Hamilton, he might be in jeopardy of losing his job. He did not speak about taking the Durham transit system.

42In cross examination he said he had been working in Brampton and Toronto, although he had not been working the whole time the car had been impounded. He said his work in Brampton was for a period of about two weeks and he had to take the GO train followed by the Brampton bus to get where he was working. He also said he worked for a number of days in Toronto, again taking the GO train and Toronto bus to get to the job site. He did not have work for several days following the impoundment. He did not work for several days in between the Brampton and Toronto jobs. He has not worked since October 7.

43When the hearing began, a beeping noise could be heard in the background. I inquired about the noise and the appellant said it was due to his opening the car door of his rented vehicle. He said he was going to remain in the car for the duration of the hearing. He did not refer to the rented car again, however it was clear from his statement that a rental car was an option he had exercised during the time of the impoundment.

Analysis on the issue of exceptional hardship

44Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the requirements that must be met in order to show the impoundment will result in exceptional hardship.

45Pursuant 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”.

46Section 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.

47If 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.²

48While it is clear the impoundment caused the appellant some inconvenience and discomfort, particularly as it relates to getting to work, I do not find this inconvenience rises to the level of exceptional hardship. In particular, the appellant has not established that there was no alternative mode of transportation. The appellant took public transport to work for the period of time in question, taking all the necessary COVID precautions. He walked to other places he needed to attend.

49Perhaps the clearest demonstration that alternative transportation was available to him is the fact he participated in the hearing while sitting in a rented vehicle. Clearly, if a rental was available during the time of the hearing, it was available during the time of the impoundment.

50Having found there were alternative modes of transportation available to the appellant, I need not then examine whether, on a balance of probabilities, the impoundment resulted in a threat to the health and safety of any person ordinarily transported by the motor vehicle. However, as there was no evidence that anyone other than the appellant relied on the impounded vehicle as a mode of transportation, I am satisfied the impoundment did not result in a threat to the health or safety of others ordinarily transported by the appellant’s vehicle.

51I find the appellant has not met his onus on this ground of appeal.

Order

52Pursuant to subsection 50.2 (5) of the Highway Traffic Act, the appeal is dismissed and the impoundment of the vehicle in confirmed.

Footnotes

1. 1Highway Traffic Act, RSO 1990, c H8, s 50.2(3)(c).
2. 2O Reg 631/98, s 10(1).