Kendall Macpherson-Walsh v. Registrar of Motor Vehicles, 2021 CanLII 131311

Date: 2021-12-15

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

Between:

Kendall Macpherson-Walsh

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Kendall Macpherson-Walsh, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: December 8, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Kendall Macpherson-Walsh (the “appellant”), appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on November 7, 2021 pursuant to s. 55.1 of the Act. At the time of the impoundment, Lucas Haynes was driving the vehicle with a suspended driver’s licence. This is the second time in the last year that the appellant’s vehicle has been impounded after Mr. Haynes was discovered driving it with a suspended licence, and so the impoundment was issued for a period of 90 days.

2Section 50.2(3) of the Act lists four grounds upon which an owner may appeal an impoundment under s. 55.1. The appellant appeals on the grounds that she exercised due diligence in attempting to determine that Mr. Haynes’ driver’s licence was not under suspension when she allowed him to drive, and that the impoundment will cause exceptional hardship.

3The appellant did not specifically allege due diligence in her Notice of Appeal or at the Case Conference, but it became clear after hearing the evidence of Mr. Haynes, and part of the appellant’s testimony, that this ground ought to be considered by the Tribunal. The appellant is representing herself and did not fully appreciate that she should have raised due diligence as a ground for appeal earlier.

4I considered the possibility that adding due diligence as a ground of appeal at the hearing might cause unfairness to the Registrar. The Registrar did not cross examine Mr. Haynes on the issue of due diligence or prepare to examine the appellant on that issue. Also, it did not have the opportunity to consider presenting its own evidence on that issue. I therefore offered the Registrar the opportunity to adjourn the hearing to a later date. The Registrar decided to proceed with the hearing. The appellant was permitted to give evidence with respect to her due diligence allegations and I am satisfied that she has had a fair opportunity to present her case at the hearing.

5I therefore ordered the hearing to proceed.

6For the reasons set out below, I find that the appellant has failed to show that she exercised due diligence in the circumstances. I further find that she statutorily precluded from alleging exceptional hardship as an appeal ground due to her previous impoundment.

ISSUES TO BE DETERMINED

7The first issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

8The second issue to be determined is whether exceptional hardship under section 50.2(3)(d) of the Act is a ground of appeal available to the appellant.

EVIDENCE AND ANALYSIS

Due diligence

9Whether or not the appellant exercised due diligence depends on whether she took reasonable steps to determine that the suspended driver’s licence was not suspended. Establishing due diligence requires the appellant to show that she did more than make assumptions of the facts. Due diligence requires steps to be taken to confirm that the driver’s licence was not suspended and that it was valid. This typically requires, at a minimum, that the owner ask to see a licence that is valid on its face, before permitting the driver to drive the car.

10On March 24, 2021, the appellant allowed Mr. Haynes to borrow her car. It was impounded later that day after it was stopped by police and it was discovered that Mr. Haynes was driving the car while his licence was under suspension. The appellant alleges that she had asked to see Mr. Haynes’ driver’s licence before allowing him to use the car and that he showed her an Ontario drivers’ licence. The appellant did not examine the licence to ensure that it was valid but assumed that it was.

11The appellant says that Mr. Haynes did not tell her that the vehicle had been impounded but instead told her that he had been in a minor accident and was having the vehicle repaired. The appellant only found out about the impoundment when the 45-day impound period expired and Mr. Haynes told her what had happened. The appellant paid the impound costs and her vehicle was released.

12According to the appellant, at some point after the vehicle was released from impoundment Mr. Haynes told her that he had arranged to have his licence reinstated. The appellant took him at his word. On November 7, 2021, the appellant was driving her vehicle with Mr. Haynes in the passenger seat. She began to feel ill and asked Mr. Haynes to drive her home. Mr. Haynes began driving and the vehicle was pulled over by police who determined that Mr. Haynes’ licence was under suspension. The vehicle was impounded for 90 days. The appellant admits that at no time between the time her vehicle was impounded in March 2021 and when she allowed Mr. Haynes to drive her vehicle on November 7, 2021 did she take any steps to determine whether Mr. Haynes had a valid licence as he claimed.

13The appellant has not demonstrated that she exercised due diligence in the circumstances. She knew that Mr. Haynes had lied about having a licence in March 2021. She knew that the licence card he showed her at that time was not valid. She knew that Mr. Haynes had lied about the vehicle being in an accident when it was impounded. In those circumstances the appellant had an obligation to take some positive action to determine whether he had a valid licence before allowing him to drive on November 7, 2021. Instead she relied upon his word. This was not reasonable given the circumstances, and I find that the appellant’s actions were inadequate to establish due diligence and her appeal on that ground must fail.

Exceptional Hardship

14The appellant alleges that the impoundment will cause exceptional hardship and argues that her vehicle should be released pursuant to s. 50.2(3)(d) of the Act. Section 50.2(4) of the Act provides that the exceptional hardship ground of appeal is not available if there has been a previous impoundment under s. 55.1 of the Act with respect to any motor vehicle then owned by the appellant.

15The evidence presented at the hearing was that the appellant’s motor vehicle was impounded pursuant to s. 55.1 on March 24, 2021. I am therefore unable to consider the exceptional hardship ground of appeal.

ORDER

16For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.