Tarra Smith v. Registrar of Motor Vehicles, 2022 CanLII 30692

Date: 2022-04-12

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:

Tarra Smith

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Tarra Smith, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: April 7, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Tarra Smith (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 8, 2022. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds 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, and that the impoundment will cause exceptional hardship.

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 is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

5The second issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

EVIDENCE AND ANALYSIS

6The respondent presented evidence which establishes that:

(1) the appellant is the registered owner of the impounded vehicle, a 2019 Toyota;

(2) on March 8, 2022, the police discovered the impounded vehicle being driven by the appellant's son, Leslie Racine-Brindley ("Leslie"); and

(3) Leslie's licence was under suspension for a Criminal Code conviction at the time it was impounded.

Due diligence

7This ground of appeal requires the vehicle owner to show that she took reasonable steps to determine that the driver's licence was not suspended. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver's assertion that his licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

8The appellant testified that, about ten years ago, when Leslie was 17 years old, he was arrested after being involved in a collision while driving without a licence and impaired by alcohol. On that occasion he had taken his grandmother's car without permission. The appellant says that Leslie had also taken the appellant's vehicle two or three times without permission when he was unlicensed. After that, the appellant was careful not to leave her keys where Leslie could find them as she did not trust him.

9In August 2019, Leslie was arrested and charged with impaired driving. An ADLS suspension was issued for ninety days expiring in November 2019. The appellant knew about that suspension. After his licence was reinstated, Leslie told the appellant that the impaired driving charges still had to be dealt with by the courts. The appellant knew that Leslie's licence would be suspended if he was convicted of impaired driving but understood that he held a valid licence until then and allowed Leslie to drive her vehicle regularly.

10Approximately six months before the impoundment of March 8, 2022, the appellant asked Leslie about the status of his impaired driving charges and asked to see his driver's licence to ensure that it was valid. At that time Leslie told the appellant that the impaired driving charges had not been resolved. He showed her his driver's licence which she noted had an expiry date of May 2022. In fact, on June 23, 2021 Leslie was convicted of impaired driving and his licence was suspended until June 23, 2022. The appellant says Leslie never told her about that and she would not have allowed him to use her vehicle if she knew about the suspension.

11For the six months preceding the date of impoundment, the appellant says she did not make any enquiries about the status of the impaired driving charges or the validity of Leslie's driver's licence. She says she did not want to be a "nag" and assumed Leslie would tell her if his licence was no longer valid. During that time, Leslie regularly used the appellant's vehicle to visit his daughter and to run errands. On the day of the impoundment, Leslie asked to borrow the appellant's car to visit his daughter and the appellant let him take it without asking about the status of the impaired driving charges or the validity of his licence. The vehicle was impounded when Leslie was on his way to visit his daughter.

12In my view, due diligence required the appellant to do more than she did to ensure that Leslie held a valid licence before allowing him to drive her vehicle on the day it was impounded. Although Leslie's history of taking vehicles without permission is somewhat dated, the appellant continues to distrust him such that she keeps her keys where he cannot take them without permission. She knew that Leslie was awaiting the outcome of his impaired driving charges and that his licence might be suspended once those charges were resolved.

13Relying on Leslie to advise her if his licence was suspended does not satisfy the appellant's due diligence obligation in the circumstances of this case. In the circumstances, the appellant had an obligation to take steps to independently verify that his licence was valid. Independent verification could have been done by communicating with the lawyer representing Leslie on the impaired driving charge, by communicating with the Ministry of Transportation ("MTO"), or by conducting a driver's licence search which can be done on the MTO's website. Had the appellant taken any of these steps in the six months leading up to the date of impoundment, she would have known that Leslie's licence was under suspension.

14I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that Leslie's driver's licence was not under suspension when the vehicle was detained in order to be impounded. Her appeal pursuant to s. 50.2(3)(c) of the Act must fail.

Exceptional Hardship

15Section 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.

16Subsection 10(1) requires the Tribunal to first 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.

17If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

18If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

19The appellant works as a nurse at Parkwood Hospital in London where she lives. She works 12-hour shifts, seven days every two weeks. Using public transit to get to work is inconvenient since the bus comes to the stop near her home only every hour or so and the buses are not always running in time to get her to work in the morning. Therefore, the appellant has had to regularly use taxis or Ubers to get to work since the impoundment. She can afford the cost of this and has missed only a few days of work since the impoundment. She does not expect to miss any more days from work before the impoundment period ends.

20The appellant has been able to complete her grocery shopping and her other usual activities during the impoundment period by taking the bus or by taking taxis. The appellant does not express any concerns that the impoundment will impact the health or safety of anyone ordinarily transported by the vehicle, or that of the environment or community.

21I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground.

ORDER

22For the reasons set out above, the impoundment of the appellant's vehicle is confirmed.