Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454

An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Nichelle Horst

Appellant

and

Registrar of Motor Vehicles

Respondent

ORDER

ADJUDICATOR:

Laura Hodgson

APPEARANCES:

For the Appellant:

Nichelle Horst, Self-represented

For the Respondent:

Stella Velocci, Agent

BACKGROUND

1The appellant’s vehicle was impounded for 45 days pursuant to s. 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the Act). This section allows a police officer to impound a motor vehicle if the driver’s licence is subject to an ignition interlock condition and the vehicle is not so equipped.

2On October 1, 2022, the appellant’s friend was driving the appellant’s vehicle and was stopped by a police officer, who discovered that she had a condition on her licence prohibiting her from driving a vehicle without an ignition interlock device. The appellant’s vehicle was not equipped with this device.

3The appellant relies on two grounds for appeal: first, that she exercised due diligence in attempting to determine that her friend’s licence was valid and not subject to conditions (s. 50.2(3)(c)). Second, the impoundment will result in exceptional hardship (s. 50.2(3) (d)).

4Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant failed to establish that she exercised due diligence or that the impoundment will cause exceptional hardship as defined in the Act. The appeal is dismissed, and the impoundment confirmed.

1) The applicant did not exercise due diligence in determining the validity of the driver’s licence

5The appellant testified that on October 1, 2022, her friend offered to be the “designated driver” and drive the appellant’s vehicle. The appellant has known this friend for many years and was aware that she had previously been convicted of impaired driving. The appellant understood that charge to have been ‘taken care of.’ She had previously driven with this friend in her friend’s vehicle and in the appellant’s vehicle, neither of which are equipped with an ignition interlock system. The appellant stated that she had previously seen her friend’s licence but didn’t note that it indicated a condition with respect to ignition interlock. She stated that she didn’t examine it closely as she doesn’t “do that to friends.” The appellant testified that she did not check the status of her friend’s licence with the Ministry of Transportation as she trusted this individual.

6Documents provided by the respondent established that the driver of the vehicle, the appellant’s friend, was convicted of impaired driving in January of 2018. This resulted in her licence being suspended until February of 2020 and then subject to the condition that any vehicle driven have an ignition interlock device.

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 was not subject to an ignition interlock condition. Due diligence requires the appellant to prove that she took “all reasonable care” (R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326). The Supreme Court has also held that “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.” (Lévis (City) v. Tétreault, 2006 SCC 12 at para. 30, [2006] S.C.J. No. 12 (S.C.C.)).

8This Tribunal has consistently interpreted due diligence to mean that the owner has taken all reasonable steps in the circumstances to ascertain whether the licence was under suspension. In the circumstances here, the appellant did not take all reasonable steps. Although she, at one time, saw her friend’s licence, she did not examine it closely. She did not note the condition on the licence requiring her friend to drive a vehicle equipped with an ignition interlock. At a minimum, the appellant should have thoroughly examined her friend’s licence. Had she done so, she would have noted the condition. Stating that she simply trusted her friend is not sufficient. Under the Highway Traffic Act, motor vehicle owners are obligated to ensure that their vehicle is not driven by someone without a valid driver’s licence or who is subject to the condition requiring an ignition interlock system. The appellant has not established that she exercised due diligence.

2) Did the appellant establish that the impoundment will result in exceptional hardship?

9The appellant testified that she requires her vehicle to attend work. She lives with her mother and is currently using her mother’s vehicle. She explained that her mother is not pleased with this arrangement and, as a result, they are “bumping heads.” The applicant also stated that she has a medical condition that periodically requires her to attend appointments and, if the condition is aggravated, to attend the hospital. She acknowledged that she has not missed any appointments while her vehicle has been impounded and, if necessary, could use her mother’s vehicle.

10The 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.

11In 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. If the owner fails to demonstrate the lack of an alternative to the impounded vehicle, then this ground of appeal cannot succeed.

12Sections 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)).

13The 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 had access to her mother’s vehicle. While inconvenient for both her and her mother, the appellant does have alternative means of transportation. As a result, the applicant has not established “exceptional hardship”.

Conclusion and Order

14In all the circumstances, the appellant has not established that she exercised due diligence or that impoundment cause exceptional hardship.

15The Tribunal confirms the impoundment of the appellant’s motor vehicle.

Licence Appeal Tribunal