An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1(3) of the Act.
Between:
Melvin Lobb
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant: Alana Lobb, daughter of the Appellant
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: December 22, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Melvin Lobb, appeals the 45-day impoundment of his 2009 Nissan Versa (the “vehicle”). The vehicle was impounded on November 23, 2021. The appellant is unable to participate in this proceeding due to his advanced age and failing health. His daughter and primary driver of the vehicle, Alana Lobb, appeared on his behalf to represent his interests.
2Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
3The appellant is appealing the impoundment on multiple grounds: that the vehicle was stolen at the time of the impoundment, that she exercised due diligence (i.e. all reasonable efforts) to determine that the driver had a valid driver’s licence, and that the impoundment will result in exceptional hardship. These grounds are provided in section 50.2(3) of the Act:
a. That the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
b. 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
c. That the impoundment will result in exceptional hardship.
4In this case, the appellant is the registered owner of the vehicle, however, his daughter is the day to day driver. At the hearing, she explained that her late mother left the vehicle for her in her Will, but it remains in her father’s name.
5Mr. Lobb currently lives in a home for the aged in Renfrew, Ontario. According to his daughter, he suffers from advanced stage dementia and no longer drives. This appeal was filed by his daughter who will also be referred to as the “appellant.”
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that; the vehicle was stolen at the time of impound; that she exercised due diligence as set out in the Regulation in attempting to verify the driver’s licence; or, that the impoundment will result in exceptional hardship.
ANALYSIS
7The appellant’s vehicle was impounded for 45 days after being driven by her friend who was living with her at the time. She explained that the vehicle was taken without her consent while she was at work. In retrospect, she explained that she should not have trusted this individual as he has stolen other things from her in the past.
8When questioned by the Registrar of Motor Vehicles (the “respondent”) if he had ever taken the car before, the appellant stated yes, however, he would typically call her at work to ask for permission. It was noted that the driver was not charged with theft, nor was the vehicle reported stolen. On the contrary, it appears the vehicle was used regularly by the appellant’s friend. During her testimony, the appellant confirmed that her friend used the car at least 10 times before. The appellant also did not have any concern that he would not eventually return the vehicle. I find there is a pattern of implicit consent in the driver’s use of the vehicle, especially the practice of taking the vehicle when she was at work. I find, on a balance of probabilities, the vehicle was not stolen from the appellant.
9After taking the vehicle on November 23, 2021, the driver was subsequently stopped by police and found to be operating while under criminal code suspension. This led to the impoundment of the vehicle.
10The appellant testified that she had asked to see her friend’s driver’s licence on a previous occasion, but he misled her to believe that it was lost in a house fire. As such, the appellant took the driver on his word. When asked if she contacted the Ministry of Transportation to verify his driver’s licence, she stated that she did not and opted to trust his word.
11I find that this does not meet the threshold of due diligence. The appellant took no reasonable steps to check and verify her friend’s driver’s licence. This is especially true since she never once saw a valid driver’s licence but still continued to allow her friend to use the vehicle while she was at work.
12In order to successfully prove due diligence, the appellant must meet a high bar (i.e. standard) to demonstrate that she made every reasonable effort to confirm the driver’s licence of any person who drives their vehicle. I am not convinced on a balance of probabilities that the appellant successfully demonstrated due diligence. There were several of things she could have done in the absence of seeing a valid licence, including calling the ministry by phone, visiting their website, attending a local office personally and/or attending a Service Ontario Kiosk. The appellant failed to take advantage of any of these options.
13At the hearing, the appellant explained that she needs the vehicle to go and visit her father in Renfrew. However, there is no threat to the health and safety of the appellant or her father who is cared for in a nursing home. Further testimony also revealed that she has siblings living in Renfrew who have been able to attend to her father.
14During her testimony, the appellant confirmed that she is currently able to take the bus to work and she has been able to get her groceries with the help of her neighbours. She has been able to get to all of her appointments. I weighed carefully the fact that she uses the vehicle to visit her father who is about an hour and a half away. She stated that her sister lives in closer proximity to her father and she visits him regularly. The appellant also has alternative, albeit less convenient, transportation to get to her destinations.
15In order to consider the grounds of exceptional hardship, I must first consider whether alternative modes of transportation exist for the appellant and they have been explored. In this case, the appellant has numerous other options available including neighbours, siblings and public transit, all of which she has been able to utilize.
16The respondent asserts that the vehicle was properly impounded in accordance with 55.1(1) of the Act. The respondent also submits that the appellant did not exercise due diligence in viewing her friend’s driver’s licence or inquiring through the Ministry of Transportation. I accept the respondent’s position that any reasonable person would have made further inquiries to confirm the correct driver’s licence status and/or placed the keys in a secure location.
17Furthermore, I find that the appellant failed to prove on a balance of probabilities that she meets the test for exceptional hardship, as set out in the Regulation, based on the alternatives available to her and the absence of any situation that can be deemed a danger to health and safety to her or her father.
ORDER
18For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: February 21, 2022