Date: 2021-04-21

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:

Gail Hitchcock

Appellant

and

Registrar of Motor Vehicles

Respondent

ORDER

ADJUDICATOR: Laura Hodgson, Member

APPEARANCES:

For the Appellant: Gail Hitchcock, Self Represented

For the Respondent: Stephen Grootenboer, Agent

Date of Teleconference: April 19, 2021

REASONS FOR DECISION AND ORDER

Overview

1The appellant’s motor vehicle was detained and impounded on March 17, 2021 for 45 days under s. 55.1 of the R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to detain and impound a vehicle if the driver’s licence is suspended for a Criminal Code related reason. In this case, the appellant’s son, who had a suspended licence following a 2019 conviction, was driving her vehicle.

2The appellant relies on the following two grounds of appeal pursuant to s. 50.2 of the Act:

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

3Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant failed to establish due diligence or exceptional hardship. The appeal is dismissed, and the impoundment is confirmed.

1) Did the applicant exercise Due Dilligence in attempting to determinE that her son’s licence was not under SUSPENSION?

Evidence

4The appellant acknowledged that her son’s licence had been suspended for one year following a criminal conviction on November 14, 2019. She testified that when the one-year suspension period had elapsed she attended Service Ontario with her son to pay the “reinstatement fees”. The appellant provided a copy of the receipt for the payment of these fees. She testified that, it was her understanding, that after paying the fees her son’s licence was fully reinstated. She agreed that they did not specifically inquire but indicated that the representative at Service Ontario did not advise them that anything else was required. The appellant also testified that she believed that her son was issued a temporary licence and later received a permanent licence in the mail but ‘could not be sure of this’. The appellant’s son did not testify.

5Following the impoundment, the Appellant learned that her son’s licence remained suspended because he had not yet completed a remedial conduct course. At the hearing, the appellant emphasised that she would never have permitted her son to drive her vehicle if she believed his licence remained suspended. While she testified that she ‘thought’ that her son had a valid licence she candidly agreed that she should, perhaps, ‘have asked more questions’.

6According to the respondent there is no evidence that a new licence was ever issued. On the Notice to Registrar, completed by the officer at the time of impoundment, the officer indicated that the driver “Failed to Produce Driver’s Licence”. With respect to what was required to have his licence reinstated, the respondent indicated that the appellant’s son would have received a letter from the MTO in 2019 outlining the necessary steps and would also have received a follow up reminder in 2020. The respondent did not provide copies of these communications. In the respondent’s submission, the applicant did not take reasonable steps to determine the validity of her son’s licence.

Law and Analysis

7The 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…”

8As 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 that 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. In Lévis (City) v. Tétreault, 2006 SCC 12, the court held that 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.”

9As discussed at the hearing, one of the obligations imposed upon the owner of a motor vehicle under the Highway Traffic Act is to ensure that their vehicle is not driven by persons without a valid driver’s licence.

10In these circumstances, where the appellant was aware of her son’s licence suspension, it is reasonable to expect that she would make the necessary inquires at Service Ontario when the fees were paid. She did not do so nor did she contact the Ontario Ministry of Transportation by telephone or online prior to permitting her son to drive. The applicant has not established that she exercised due diligence.

2. Did the Appellant establish that the impoundment will result in exceptional hardship?

Evidence

11The appellant testified that she requires her vehicle to provide groceries, meals and prescriptions for her elderly parents. Her parents are not currently leaving their home because of the ongoing Covid 19 pandemic. Since the impoundment of her vehicle, the appellant has been renting a vehicle so that she can continue to assist her parents. She testified that that the rental fees were causing financial hardship.

Law and Analysis

12The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), a regulation made under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.

13In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss. This includes using another vehicle and making arrangements to do without a vehicle.

14Sections 10 (2) and 10 (3) of the Regulation set out factors that may or may not be considered by the Tribunal in certain circumstances. The Tribunal cannot consider “inconvenience to any person” (ss. 10 (2) (a) and (3)).

15With respect to the other factors in s. 10 (2), namely: (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; and (d) loss of education or training or of an educational or training opportunity to any person, the Tribunal may only consider those factors, if there is no alternative to the impounded vehicle available, and that, among other things, the loss will be immediate, significant and lasting.

16The appellant has not established that she does not have an alternative to her impounded vehicle as set out in s. 10 (4) of the Regulation. Since the impoundment she has rented a vehicle so that she can continue to assist her parents. While renting is costly and inconvenient, the appellant did not establish that her finances prohibit continued use of this alternative means of transportation. The applicant and has not established “exceptional hardship”.

Conclusion and ORDER

17In all the circumstances, the appellant has not established due diligence or that the impoundment results in exceptional hardship.

18The Tribunal confirms the impoundment of the appellant’s motor vehicle.