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:
Donna Solomon
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Donna Solomon, Self-Represented
For the Respondent: Sanjay Kapur, Agent
Date of Teleconference Hearing: August 5, 2021
Overview
1Ms. Donna Solomon (“appellant”) appeals the impoundment of her 2017 Mazda CX5 (“vehicle”). It was impounded on June 29, 2021 for 45 days when it was discovered being driven by Christopher Jones, her son-in-law, whose driver’s licence was suspended due to a previous drinking and driving offence.
2The appellant appeals the impoundment on two grounds:
the appellant exercised due diligence in attempting to determine that Mr. Jones’s driver’s licence was not then suspended,
the impoundment will result in exceptional hardship
ISSUE
3Should the Registrar of Motor Vehicles (‘Registrar”) be ordered to release the appellant’s vehicle on either of those grounds?
DECISION
4The impoundment will not result “exceptional hardship” as defined under the Highway Traffic Act (“Act”) and regulation.
5However, the appellant exercised due diligence in attempting to determine that Mr. Jones’ driver’s licence was not then suspended.
6Since the appellant was successful on the latter ground of appeal, I have directed the Registrar to release the appellant’s vehicle.
THE LAW
7Under 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 has been suspended due to a conviction under the Criminal Code for certain drinking and driving offences.
8The owner of the impounded vehicle may appeal the impoundment to this Tribunal and, after holding a hearing, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
9The Act allows only five grounds upon which an owner may appeal, and they include the two grounds the appellant relies on in this case. Those two grounds are set out in section 50.2(3) of the Act, which states:
The only grounds upon which an owner may appeal […] and the only grounds upon which the Tribunal may order the Registrar to release the motor vehicle are:
(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 […] impounded […] was not then suspended […]
(d) that the impoundment will result in exceptional hardship.
10The onus is on the appellant to establish the facts that support each ground of appeal on a balance of probabilities.
11With respect to the ground of exceptional hardship, section 10 of Ontario Regulation 631/98 (“Regulation”) provides that in determining whether an impoundment will result in exceptional hardship, the Tribunal must consider whether an alternative to the impounded vehicle is available. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle. The Tribunal may only consider financial loss if there is no alternative to the impounded vehicle.
12In order to show that no alternative to the impounded vehicle is available, the Regulation provides that the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
THE FACTS
13The appellant’s vehicle was impounded on June 29, 2021 in Sault Ste. Marie, Ontario when police discovered it being driven by Christopher Jones, the appellant’s son-in-law.
14According to Ministry of Transportation (“MTO”) records, at the time of impoundment, Mr. Jones’ Ontario driver’s licence was under suspension. It was suspended for life on April 2, 2003 after a series of Criminal Code drinking and driving related convictions.
15With respect to the appellant’s first ground of appeal – due diligence – the appellant testified that she knew nothing of Mr. Jones’ lifetime driving suspension in Ontario and she let him borrow her vehicle based on her understanding that Mr. Jones held a valid driver’s licence from Arizona.
16She testified that her daughter and Mr. Jones moved to Arizona in 2006. They returned in July 2020 and moved in with the appellant and her husband.
17According to the appellant, she knew that both her daughter and Mr. Jones had valid Arizona driver’s licences. She had seen both licences on occasion. Most recently, she saw Mr. Jones’ Arizona licence when she went to Arizona in May 2020 to help her daughter pack up for the move back to Ontario.
18During that visit she went with Mr. Jones to the Arizona Department of Motor Vehicles (DMV) to register the sale of his vehicle. He had to produce his driver’s license and the appellant saw it, along with the other transaction documents, in his vehicle. She noted that the licence expiry date was 2047. That stood out for her because Ontario driver’s licences expire in a much shorter time.
19The appellant testified that at the DMV office Mr. Jones handed his driver’s licence to the employee behind the counter to complete the vehicle transfer. The employee checked it and handed it back to Mr. Jones which, to the appellant, confirmed that Mr. Jones’ driver’s licence was valid. According to the appellant, this occurred about a month before Mr. Jones moved back to Ontario and contributed to her belief that Mr. Jones held a valid out-of-province driver’s licence.
20With respect to the appellant’s second ground of appeal - exceptional hardship - the appellant testified that she has three vehicles registered to her name - the impounded vehicle, a 2018 GMC pickup truck, and 2006 Chevrolet sedan. According to the appellant, the Chevrolet is unsafe to take on the highway and is only suitable to drive to the nearest convenience store or around the neighborhood. The impoundment has left the household of four adults with one working vehicle – the pick-up truck.
21Both the appellant and her husband are retired and do not need a vehicle daily to get to work. Mr. Jones has just started a new job but gets a ride to his work from a neighbour. The appellant’s daughter however suffers from a medical condition that requires her to attend a clinic in Sault Ste Marie each day, as well as additional medical appointments that can only be accessed by vehicle. There is no public transportation available in her area.
22According to the appellant, it is very difficult to meet the transportation needs of the household with one vehicle. In addition to the daughter’s daily need for the vehicle, the appellant and her husband require a vehicle to attend medical appointments, pick up prescriptions and groceries, and run other household errands.
23The appellant states that the cost of the impoundment (about $3,000) will cause financial hardship for her. She testified that it is unlikely that Mr. Jones will pay for the impoundment costs, at least any time soon. She and her husband receive a modest pension and there is no room in the family budget for this unexpected expense. She is still making payments on the pick-up truck and the cost of the impoundment will likely have to be borrowed which will place a financial strain on the household for some time to come.
ANALYSIS
(a) Due Diligence
24The appellant’s first ground of appeal is that she exercised due diligence in in attempting to determine that Mr. Jones’ driver’s licence was not then under suspension. The onus is on the appellant to demonstrate that she took the steps that would be expected from a reasonable and prudent person under the same circumstances to confirm that Mr. Jones’ driver’s licence was not then under suspension.
25Based on the evidence presented, I conclude that the appellant has met that onus.
26It important to note that the appellant was deceived by Mr. Jones. He used her vehicle without letting her know that he had an Ontario licence that had been suspended for life. That made it illegal for Mr. Jones to drive in Ontario1 and it seems likely that he intentionally kept that from the appellant because if she knew the true state of affairs, she probably would not let him use her vehicle.
27The question is whether the appellant exercised due diligence in attempting to determine that Mr. Jones’ driver’s licence was not under suspension. But because Mr. Jones deceived her, the appellant was unaware that Mr. Jones had an Ontario licence. She proceeded under the belief that his valid Arizona licence was his only licence. She lent Mr. Jones her vehicle on the understanding that he was driving under a valid Arizona driver’s licence. She personally observed the Arizona driver’s licence card, apparently valid on its face, and with a lengthy expiry date, about one month before Mr. Jones moved back to Ontario.
28It is difficult to point to any steps that the appellant could have taken that would have revealed Mr. Jones’ suspended Ontario driver’s licence. In Ontario, a driver’s licence number may be readily checked online to determine whether the licence corresponding to that number is under suspension or not. But that tool was of no use to the appellant in this case because she was unaware that Mr. Jones had an Ontario licence or its number. The online search function does not allow someone to search an individual’s name to determine whether that individual holds a driver’s licence in Ontario.
29Under the Act, a new resident has 60 days in which to switch an out-of-province licence to an Ontario driver’s licence2. At the time of impoundment Mr. Jones had been driving in Ontario under his Arizona licence for almost one year. In the Registrar’s view, a reasonable and prudent person in the appellant’s circumstances would, at some point during the year, have insisted that Mr. Jones either obtain an Ontario driver’s licence or stop using the vehicle.
30All of that may be true. However, the issue is not whether the appellant should have withheld use of her vehicle until Mr. Jones obtained an Ontario driver’s licence, but whether the appellant exercised due diligence in attempting to determine that Mr. Jones’ driver’s licence was not then under suspension.
31I would note that I do not think that every case in which the vehicle owner relies upon viewing a valid driver’s licence from a different jurisdiction rises to the level of due diligence. Whether that will be sufficient is context specific, and must be decided on a case-by-case basis with regard to factors such as the relationship between the owner and driver, whether the owner was aware of a history of impaired driving, suspensions or other serious infractions, how long it has been since the owner viewed the licence and the circumstances in which they viewed it. In the specific context of this case, the appellant has met its onus.
32In summary, the appellant was deceived by Mr. Jones and lent her vehicle to him on what I conclude was her sincere understanding that Mr. Jones was driving under a valid Arizona licence. There is no evidence that suggests that the appellant was or should have been aware that Mr. Jones also had an Ontario driver’s licence. In the particular circumstances of this case, I conclude the appellant exercised due diligence by directly examining Mr. Jones’ Arizona licence and noting that that it had an expiry date well into the future.
(b) Exceptional Hardship
33The appellant’s second ground of appeal is that the impoundment will result in exceptional hardship. I conclude that although the impoundment will no doubt result in inconvenience to the appellant it will not result in exceptional hardship as that term is used in the Act and Regulation.
34The Regulation requires that in determining whether an impoundment will result in exceptional hardship, the Tribunal must first consider whether there is any alternative to the impounded vehicle and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.
35In this case, the appellant has an alternative to the impounded vehicle. The appellant not only owns the impounded vehicle, she also owns a working GMC pick-up truck.
36The appellant testified that co-ordinating the transportation needs of the household has been difficult with one vehicle available. Of the three drivers in the household, two (the appellant and her husband) are retired and do not need a vehicle to get to work daily. The appellant’s daughter requires a vehicle to travel daily to a clinic as well as other medical appointments. However, there is no evidence that the daughter has missed any medical appointments or that the impoundment has resulted in any threat to the health and safety of a person ordinarily transported by the vehicle.
37The appellant’s main concern appears to be the financial difficulty resulting from the cost of the impoundment. However, according to the regulation, the Tribunal may only consider financial loss as exceptional hardship if there is no alternative to the impounded vehicle. In this case the appellant has a viable alternative and this ground of appeal therefore fails.
(c) Summary
38Although I conclude that the impoundment will not result in exceptional hardship, the appellant has met the onus of establishing on a balance of probabilities that she exercised due diligence in attempting to determine that Mr. Jones’ driver’s licence was not then under suspension. I have therefore directed the Registrar to release the appellant’s vehicle.
ORDER
39Pursuant to s.50.2(5) of the Highway Traffic Act, I direct the Registrar to release the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: August 12, 2021
Footnotes
- Section 36 of the Act provides that a person whose driver’s licence or privilege to drive a motor vehicle in Ontario has been suspended shall not drive a motor vehicle in Ontario under a driver’s licence or permit issued by any other jurisdiction during the suspension.
- The Act, s. 32(1), s. 34(2),