Andrew M. Reid v. Registrar of Motor Vehicles, 2022 CanLII 33253

Date: 2022-04-25

File Number: 13964/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Andrew M. Reid

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDOCATOR: Jacqueline Castel

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Teleconference Hearing: April 25, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on April 25, 2022 to consider the appellant’s appeal of the 45 day impoundment of his 2002 Honda, CRV (the “vehicle) under s. 55.1 of the Highway Traffic Act (the “Act” or the “HTA”).

2The vehicle was impounded on April 3, 2022 because it was being driven by the appellant’s brother whose driver’s licence is under a Criminal Code suspension.

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

ISSUES:

4The issues to be determined are:

(i) Did the appellant exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence?

(ii) Did the impoundment result in exceptional hardship?

CONCLUSION:

5On the evidence before me at the hearing, I find that the appellant did not exercise due diligence and that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(c) and (d) of the HTA.

LAW AND ANALYSIS:

6The owner of a vehicle that has been impounded pursuant to s. 55.1(1) of the HTA, may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the grounds of due diligence and exceptional hardship.

Due Diligence

8In order to establish that the appellant exercised due diligence, within the meaning of section 50.2(3)(c) of the HTA, the appellant must prove that he made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was impounded.

9The appellant testified that he had no knowledge that his brother’s licence was under suspension when he allowed him to drive his vehicle. He explained that he has lived with his brother, Richard, since 2019, and his brother never mentioned that his driver’s licence was under suspension. He indicated that Richard has borrowed his vehicle on numerous occasions over the years. He also indicated that Richard regularly borrows his mother’s vehicle, and she too had no knowledge that his driver’s licence was under suspension. The appellant acknowledged that he did not ask to see his brother’s driver’s licence or verify the status of the licence with the Ministry of Transportation. He stated that he had no reason to question the status of his brother’s licence.

10Relying on one’s brother to be forthright about the status of his driver’s licence and assuming that he held a valid licence does not constitute due diligence. To meet the requirements of due diligence, the appellant would have needed to verify his brother’s licence and/or make inquiries with the Ministry of Transportation concerning the status of the licence.

11Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 50.2(3)(c) of the Act.

Exceptional Hardship

12Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements.

13The appellant testified that his primary place of employment is at Chuuk Bar & Restaurant in Pickering. He stated that during the period of impoundment, he has used public transportation to get to and from Chuuk’s. He confirmed that he has not had to miss any work. In fact, the appellant stated that he has increased his hours at Chuuk’s to make up for some of the loss of income at his secondary and tertiary jobs.

14The appellant explained that he also works part-time at Homeward Bound, Lighthouse, and Uber EATS. Homeward Bound and Lighthouse are primarily volunteer positions, but the appellant receives an honorarium for certain work. The appellant has not been able to do deliveries for Homeward Bound, Lighthouse and Uber EATS during the period of impoundment. He indicated that he resides with his mother, who owns a vehicle, but it is not possible to borrow his mother’s vehicle for these jobs, as she requires it for her own volunteer work. He also indicated that it would be too costly for him to rent a vehicle. The appellant indicated he will be able to resume his regular hours and work with Homeward Bound, Lighthouse and Uber EATS when his vehicle is released to him.

15The appellant testified that he is also a “permittee” with the International Alliance of Theatrical Stage Employees, which enables him to do occasional contract jobs within the Props/Set/Greens department. He acknowledged that this is not a steady source of income, and he only accepts contract positions which do not interfere with his employment at Chuuk Bar & Restaurant and other commitments. The appellant stated that he turned down two contract jobs during the period of impoundment because he required a vehicle.

16The appellant indicated that he has been able to borrow his mother’s vehicle to do errands, from time to time, during the period of impoundment. When her vehicle is not available, he walks or uses public transportation to do errands.

17The appellant testified that his brother has agreed to pay the impoundment fees if this appeal is denied.

18There is no doubt that the appellant has been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because he has alternative modes of transportation available, including public transportation and, from time to time, the use of his mother’s vehicle. The appellant has also been able to increase his hours of work at Chuuk Bar & Restaurant, his primary place of employment, to make up for some of the loss of income at Uber EATS, where he will be able to resume his regular hours and duties when the vehicle is returned to him.

19Since the appellant did not satisfy the test that there was no alternative to the impounded vehicle, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER:

20Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.