Evan Ashley v. Registrar of Motor Vehicles, 2022 CanLII 117077

Date: 2022-12-09

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:

Evan Ashley

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Evelyn Spence, Member

APPEARANCES:

For the Appellant: Evan Ashley, Self-Represented

For the Respondent: Leila Pereira, Agent

Held by teleconference: December 7, 2022

A. OVERVIEW

1The appellant, Evan Ashley, appeals the 45-day impoundment of his 2012 Ford Focus SE (the “vehicle”).

2On November 3, 2022, the appellant’s friend (the “driver”) was driving the vehicle and was stopped by a police officer, who discovered that the driver’s licence was suspended. The appellant’s vehicle was therefore impounded pursuant to section 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), which allows a police officer to impound a motor vehicle if the licence of the person driving the vehicle is subject to a Criminal Code-related suspension.

3The appellant requests that the Tribunal make a finding that the impoundment be set aside and that the Registrar of Motor Vehicles (the “Registrar”) release the vehicle.

B. ISSUE AND DECISION

4The appellant appeals on two of the grounds permitted under s. 50.2(3) of the Act, namely that:

i. The appellant exercised due diligence in attempting to determine that the driver’s licence was not under suspension at the time of impoundment; and,

ii. The impoundment will result in exceptional hardship.

5For the reasons that follow, the impoundment is confirmed. I find that the appellant failed to establish that he exercised due diligence or that the impoundment will cause exceptional hardship, as defined in the Act.

C. LAW AND ANALYSIS

6The intent of the Act is to promote public safety by preventing persons whose driver’s licenses are suspended for certain reasons from operating motor vehicles. Pursuant to s. 55.1 of the Act, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for various Criminal Code-related offences.

7The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2 of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the period of impoundment.

8There are limited grounds on which an owner may appeal an impoundment. The appellant bears the burden of proving that they fall within one of the grounds of appeal set out in s. 50.2(3) of the Act.

9In this case, the two grounds advanced by the appellant was that he exercised due diligence in attempting to determine that the licence of the driver was not under suspension at the time of impoundment, and that the impoundment will result in exceptional hardship.

a) Due Diligence

10“Due diligence” means taking such action that would be expected from and ordinarily exercised by a reasonable and prudent person under similar circumstances. In the context of motor vehicle impoundments, the Tribunal has long-established that due diligence requires that a motor vehicle owner take express steps to exercise care and attention. An assumption, or simply accepting a statement from a driver that they hold a valid licence, is not sufficient.

11In this case, the appellant testified that he assumed the driver held a valid licence because she had recently purchased a new van and he understood that she was in the process of having it registered with Service Ontario. He admitted that he did not make any efforts to confirm that she had a valid licence, including to ask to see her driver’s licence or to check on the Ministry of Transportation’s website to confirm the status of the driver’s licence.

12Documents provided by the Registrar established that the driver, whom the appellant testified he had known for about a year, had multiple suspensions on her licence, including for impaired driving and unpaid fines.

13In the circumstances, I find the appellant has not established that he exercised due diligence in attempting to determine that the driver’s licence was not under suspension.

b) Exceptional Hardship

14Section 10 of Ontario Regulation 631/98 (the “Regulation”), made under the Act, sets out the criteria that the Tribunal may consider, and others that it may not, in determining whether an impoundment will result in exceptional hardship. The test for exceptional hardship in the impoundment context is very difficult to meet.

15Pursuant to s. 10(1) of the Regulation, the Tribunal’s first step, in assessing exceptional hardship, is to consider whether an alternative to the impounded motor vehicle is available. If the Tribunal finds that there is an alternative to the impounded vehicle, then the Tribunal need not consider any other requirements – the ground of exceptional hardship will have failed.

16The legal threshold for confirming whether there is an “alternative to the impounded vehicle” is not simply whether the appellant owns or has access to a second vehicle. Instead, s. 10 (4) of the Regulation sets out what an appellant must show in order to meet this initial prong of the test, as follows:

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.

17In this case, the appellant’s evidence is that there are alternatives to the impounded vehicle, in that Mr. Ashley:

a. has a service van, which he is able to use for work purposes;

b. has been able to avail himself of his father’s vehicle, from time to time, to get groceries and otherwise have his personal needs met; and,

c. has also been able to avail himself of his girlfriend’s vehicle, or has received lifts from his girlfriend, to get groceries, attend activities/events, and otherwise have his personal needs met.

18Mr. Ashley confirmed that, because he has access to a work van, which he keeps with him at his home, he has not had to miss any days of work.

19While some of the above-noted alternatives may not be ideal, they are available options which have helped to mitigate the threat or loss of Mr. Ashely’s full-time employment and have assisted him in meeting any immediate or personal needs.

20Given that I have found there are alternatives to the impounded vehicle available, I do not need to consider the other provisions of s.10(1) of the Regulation.

D. ORDER:

21Pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment of Mr. Ashley’s vehicle. The vehicle shall remain at the impound facility for the remainder of the impound period.