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:
Susan McNab
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: STEPHEN SCHARBACH, MEMBER
APPEARANCES:
For the Appellant: Susan McNab, Self-Represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: January 22, 2021
Overview
1Ms. Susan McNab (“appellant”) appeals the impoundment of her 2017 Hyundai Accent (“vehicle”). It was impounded on December 19, 2020 for 45 days when it was discovered being driven by her son whose driver’s licence was suspended.
2The appellant appeals the impoundment on two grounds:
i) she exercised due diligence in attempting to determine that her son’s driver’s licence was not then under suspension;
ii) the impoundment will result in exceptional hardship.
ISSUE
3Should the Registrar be ordered to release the appellant’s vehicle on the either of the above two grounds?
DECISION
4The impoundment is confirmed.
5The evidence does not establish that the appellant exercised due diligence in determining whether her son’s licence was not under suspension.
6With respect to exceptional hardship, although the impoundment will result in inconvenience and a financial cost to the appellant, I conclude that the impoundment will not result in “exceptional hardship” within the meaning of that term under the Highway Traffic Act (“Act”) and regulations.
THE IMPOUNDMENT
7The appellant’s vehicle was impounded on December 19, 2020 when police discovered it being driven by James McNab, the appellant’s son. According to MTO records, James’ driver’s licence has been suspended since 2010 after a conviction for a drinking and driving offence. It has remained suspended since then because James has not complied with a requirement to take a remedial program for impaired driving.
8The appellant lives in Guelph, Ontario, and on December 19, 2020, James asked the appellant to drive him to Burlington to pick up his friend. The appellant agreed.
9On the way to Burlington, James objected to the appellant’s driving and at one point screamed at her. On the way back, after picking up the friend, James asked to drive, and the appellant let him. According to the appellant, her son has a history of violent behaviour and can fly into a rage. She testified that her son was angry and intimidating, she was far from home in a strange city at night, and she felt the safest thing to do was to let James drive.
10Shortly afterwards, the vehicle was stopped at a RIDE checkpoint. When the police discovered that James was driving while his licence was under suspension, the appellant’s vehicle was impounded for 45 days.
THE LAW
11Under the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a driver whose licence was under suspension for a variety of reasons, including previous drinking and driving offences.
12The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
13The Act allows only five specified grounds on which an owner may appeal, and they include the two grounds which the appellant relies on in this case. The onus is on the appellant to establish the facts that support the grounds of appeal on a balance of probabilities.
ANALYSIS
14The Act provides that an owner may only appeal an impoundment, and the Tribunal may only order release of the vehicle, on the narrow grounds specified in the Act.
15The appellant relies on two of them, and my findings and analysis with respect to each are set out below.
(a) Due Diligence
16In order to establish that the appellant exercised due diligence within the meaning of the Act, the appellant must prove that she made all reasonable efforts to determine that James’ licence was not under suspension at the time of the impoundment.
17The appellant testified that at the time of the impoundment, she thought James had a valid licence. She had several conversations with him about it over the past year, and on each occasion, James claimed he did. She asked him more than once to prove that by showing her his licence, but James dodged those questions with excuses for why it wasn’t available.
18The appellant testified that by the time the vehicle was impounded in December 2020, she was beginning to suspect that James was not being truthful with her, but she was still surprised to learn when the car was impounded that James did not have a valid licence.
19Although I can understand the appellant wanting to give her son the benefit of the doubt, I conclude that she did not take all reasonable efforts to find out whether James’ licence was not