Dorothy Worsell v. Registrar of Motor Vehicles, 2021 CanLII 2007

Date: 2021-01-14

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:

Dorothy Worsell

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

Panel: Katherine Livingstone, Member

Appearances:

For the Appellant: Self Represented

For the Respondent: Sonia DeSantis, Agent

Place and date of hearing: By teleconference, November 17, 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 October 10, 2020, as a result of it 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 November 18, 2020, I issued a written decision finding the appellant had not met her onus of either ground of appeal and confirming the impoundment. I indicated written reasons would follow. These are my reasons.

Issues

4The issues to be determined are:

a. whether the appellant exercised due diligence in attempting to determine that the licence of the driver was not then under suspension; and

b. whether the appellant 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 both the grounds of due diligence and exceptional hardship.

Preliminary Issue

6Although prior to the hearing the appellant had only raised the ground of exceptional hardship as a basis for appeal, at the beginning of the hearing she indicated she wished to add the ground of due diligence. After hearing the submissions of the appellant, the respondent’s agent indicated she was prepared to proceed to hearing on both grounds without the need of an adjournment. Given the respondent’s position, I agreed to consider due diligence as an additional ground of appeal.

Evidence and Analysis

Background

7The respondent presented documentary evidence which was not contested by the appellant. The documents indicated the appellant is the registered owner of a 2012 Buick motor vehicle. On October 10, 2020, her vehicle was impounded after police stopped the driver of the vehicle, Paragass Haripersaud, and determined he was a suspended driver.

8The documentary evidence also indicated that, on at least three occasions since April 2017, Mr. Haripersaud had been stopped by police driving the appellant’s vehicle while his licence was under suspension.

9The appellant and Mr. Haripersaud testified at the hearing.

Evidence and Analysis on the issue of due diligence

10The due diligence ground of appeal under s 50.2(3)(c) of the HTA 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…”.

11As 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 SCR 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.

12In 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.”

13I found the appellant’s evidence with respect to the issue of due diligence to be vague, inconsistent and confusing.

14The appellant and Mr. Haripersaud reside in the same residence. The appellant testified she had, in the past, acted as a surety for Mr. Haripersaud when he had outstanding charges related to drinking and driving and was aware his licence had been suspended on occasion. She said she had relied on the direction of his lawyer who, three years ago, told her to hide her car keys from Mr. Haripersaud. She did not say when this direction was in relation to the other times Mr. Haripersaud had driven her vehicle and been stopped by the police. She was unclear during her evidence as to what she understood to be the state of Mr. Haripersaud’s licence on October 10, 2020, although she did indicate she would now like to be notified in writing of any suspension of his licence.

15The appellant testified she was asleep on the morning of October 10, 2020 and she had the cars keys on her person. While she was sleeping, Mr. Haripersaud came into the room and took her keys. She did not give any evidence in relation to whether she had instructed Mr. Haripersaud not to operate the car. However, even if keeping the keys with her was a strategy to prevent him from driving, it does not assist in establishing the ground of due diligence as the ground is restricted to diligence in determining the licence status, not in preventing the vehicle from being driven

16The appellant was unclear on when she had last looked at Mr Haripersaud’s licence but recalled at some point seeing a licence with a whole punched in it. She also recalled that Mr. Haripersaud had received a licence through the mail at some point, but she didn’t really look at it. She did not look at his licence on October 10, 2020.

17Mr Haripersaud testified he took the keys to the appellant’s car when she was sleeping. He too was unclear as to his understanding of the status of his licence on October 10, 2020. He said at some point his driver’s licence had been stolen and that he never got it replaced. He also said he had shown the appellant his driver’s licence in 2016.

18In sum, the evidence of the two witnesses was filled with inconsistent information about the state of Mr. Haripersaud’s licence with no clear understanding of what steps, if any, the appellant took prior to October 10, 2020 to determine Mr. Haripersaud’s licence was not under suspension.

19I find the appellant has not established that she took “all reasonable care” to ensure Mr. Haripersaud had a valid licence. There was no clear evidence she had told him not to drive her vehicle, or that she had taken any steps to confirm he had a valid licence. I find her actions do not meet the test of due diligence and I dismiss this ground of appeal.

Evidence and Analysis on 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 Tribunal must then consider whether 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.

23The appellant testified she suffers from medical issues which are concerning to her and require both medication and appointments with doctors. Fortunately, although inconvenienced by the impoundment, the appellant has been able to maintain phone appointments with her doctor (the office is closed to in-person visits due to Covid 19) and ensure her medications have been re-ordered and refilled. The appellant candidly said it was just as easy to walk to the pharmacy as it was to drive.

24Additionally, she rented a vehicle on one occasion to do grocery shopping, pick up mail and attend to an appointment. Her children, who live out of town, offered to help if needed, she told them she would like to work it out on her own. Mr. Haripersaud testified that he has helped with the grocery shopping as well. I find the appellant had reasonable alternatives to the impounded vehicle.

25In response to questions by the respondent’s agent, the appellant indicated that, on October 19, 2020, while the car was impounded, she missed an appointment for oral surgery in Brampton, some distance from her home. However, she said she made the decision to cancel as she didn’t really want to go to a 2-3 hour appointment where she would be put under anesthetic. This decision did not appear to be related to the impoundment of her vehicle but was rather a personal choice.

26Given the above, I find that although the impoundment of her vehicle may in some ways have been inconvenient, the appellant’s circumstances do not amount to exceptional hardship. I find the appellant has not met her onus on this ground of appeal.

Order

27Pursuant to s. 50.2 (5) of the Highway Traffic Act, the appeal is dismissed, and I confirm the impoundment of the motor vehicle.