Date: 2021-06-01

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

Patti Riddell

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Colin Osterberg, Member

APPEARANCES:

For the Appellant: Steven Northey, Representative

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: May 28, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Patti Riddell (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 March 10, 2021. At the time of the impoundment, the driver, the appellant’s son Ryan Pinkerton, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the ground that the impoundment will cause extraordinary hardship and on the ground 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.

3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ISSUES TO BE DETERMINED

4The first issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

5The second issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act. The appellant did not specifically raise this ground of appeal in her Notice of Appeal or at the Case Conference. It became clear during the course of the hearing that the appellant was taking the position that she did all that was reasonable to ensure that the driver of the vehicle at the time of the impoundment was properly licenced, and that due diligence ought to have been included as an issue in the appeal. The appellant had a full opportunity to present evidence in support of her due diligence argument at the hearing and the respondent Registrar of Motor Vehicles did not object to this ground being included. Therefore, I have considered due diligence in this decision.

EVIDENCE AND ANALYSIS

6The respondent submitted into evidence, under the seal of the Ministry of Transportation, the Vehicle Record of the impounded vehicle, Notice to Registrar dated March 10, 2021, Notice of Impoundment and Release, Driving Record of Ryan Pinkerton, and Notice to Registrar dated April 11, 2016. Pursuant to ss. 49 and 210(7) of the Act, those documents were admitted into evidence and accepted, absent evidence to the contrary, for the truth of the facts contained therein. The appellant stated that she had no evidence to contradict the facts described in the documents filed, and agreed their contents were true.

7The Ministry of Transportation’s records disclose that the appellant is the registered owner of the impounded vehicle, a 2010 Ford Fusion. At the time of impoundment, Mr. Pinkerton was driving the vehicle while his driver’s licence was under suspension.

8The evidence at the hearing was that, in 2016, Mr. Pinkerton was arrested for impaired driving while driving the appellant’s vehicle. His licence was suspended and was never reinstated. The appellant testified that she knew about the impaired driving conviction and the suspension. She testified that, since the suspension occurred in 2016, she assumed it had been reinstated by 2021. The appellant testified that, on the date of the impoundment of March 10, 2021, Mr. Pinkerton was driving her to work. On the way to the appellant’s workplace, the vehicle was stopped by police and Mr. Pinkerton was charged with impaired driving. The police subsequently impounded the vehicle.

9The appellant says that she did not know that her son did not have a valid licence when she allowed him to drive on the day of the impoundment and did not know that he was impaired at the time.

10The impoundment was for a period of 45 days ending April 24, 2021. The vehicle was released to the appellant on that date.

Exceptional Hardship

11Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

12Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he 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.

13If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

14The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if the owner demonstrates the following:

a) no alternative to the impounded motor vehicle is available.

b) the loss will be immediate, significant and lasting.

c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

d) the impact of the loss,

i. will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

ii. will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

15The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

16The evidence demonstrates that the appellant had alternatives to the impounded vehicle available to her and her appeal under s. 50.2(3)(d) of the Act must fail as a result.

17The appellant testified that she was starting a new business at the time the vehicle was impounded and used the impounded vehicle to travel to various appointments in connection with the business. In particular, the appellant had to attend meetings with her landlord as well as various contractors who were preparing the business location for opening. She also used the vehicle to attend to purchase supplies for the business. The appellant used the vehicle for personal activities such as doing the groceries and running errands.

18During the period when the vehicle was impounded, the appellant was able get around in a number of ways. She got rides from friends or her business partner, took taxis, used public transportation, and borrowed a vehicle from a friend. For the last two weeks of the impoundment, the appellant rented a car. She did that because she had three or four business appointments out of town and needed a car to get to them.

19The appellant did not present any evidence that she was unable to attend appointments due to the impoundment or that the impoundment had any long-term effects on the business. The appellant did not present any evidence that the impoundment prevented her from conducting her usual personal activities. Since the impoundment ended, everything has returned to normal according to the appellant. Her business is on track to open as scheduled and she presented no evidence of any lasting damage that she will suffer due to the impoundment. Her son has promised to pay her for the cost of releasing her vehicle from the impoundment facility.

20The appellant has failed to show that no reasonable alternative to the impounded vehicle was available to her. She was able to complete her normal business and personal activities by getting rides from her business partner and friends, taking taxis, riding the bus, and renting a car. The impoundment was inconvenient for the appellant. However, inconvenience is not an available consideration in this appeal.

21Given that the appellant has failed to show that there was no alternative to the impounded vehicle available to her, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in some inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground. I now turn to the ground of due diligence under section 50.1(3)(c) of the Act.

Due diligence

22This ground of appeal requires the appellant to show 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. Due diligence involves more than making assumptions of the facts. It requires steps to be taken to confirm the facts and, in vehicle impoundment cases, at a minimum, requires the owner to ask to see a valid licence before permitting the driver to drive the car. The requirement may, of course, be greater depending on the circumstances.

23Based on the evidence presented at the hearing, I find that the appellant did not exercise due diligence to determine whether Mr. Pinkerton’s licence was under suspension at the time of the impoundment and the appeal based on s. 50.2(3)(c) of the Act must fail.

24The appellant knew Mr. Pinkerton’s licence was suspended in 2016 as the result of an impaired driving conviction. Since that time, the appellant never asked whether Mr. Pinkerton’s licence had been reinstated and never asked to see his licence at any time. There is no evidence that she made any inquiry at all to see if Mr. Pinkerton’s licence had been reinstated at any time prior to allowing him to drive on the date of the impoundment.

25While it is possible that there may be cases where a parent may be found to have exercised due diligence when letting a child drive without first checking for a valid licence, this is not such a case. Given the appellant’s knowledge of Mr. Pinkerton’s previous suspension, she had an obligation to take some action to ensure that Mr. Pinkerton’s licence was reinstated and that his licence was valid before allowing him to drive her vehicle.

26The evidence at the hearing was that the appellant did nothing. She did not ask whether Mr. Pinkerton’s licence was reinstated and there is no evidence that he ever told her it had been. She did not ask to see his licence and did not even ask if he had a valid one. The appellant simply assumed that Mr. Pinkerton’s licence had been reinstated and that it was valid when she allowed him to drive the day of the impoundment. That was not sufficient to satisfy the appellant’s obligation to exercise due diligence in the circumstances.

27I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that Mr. Pinkerton’s driver’s licence was not then under suspension when the vehicle was detained. The appeal on this ground must fail.

ORDER

28For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.