Spence v. Registrar of Motor Vehicles, 2022 CanLII 45251

Licence Appeal Tribunal

Date: 2022-05-19

File Number: 14007/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:

Cathryn Spence

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Jacqueline Castel Jeffrey Campbell

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Stella Velocci, Agent

Teleconference Hearing: May 18, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on May 18, 2022 to consider the appellant’s appeal of the 45 day impoundment of her 2017 Mazda CX5 (the “vehicle) under s. 55.1 of the Highway Traffic Act (the “Act” or the “HTA”).

2The vehicle was impounded on April 6, 2022 because it was being driven by the appellant’s boyfriend, whose licence was 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, at the time of the impoundment, held a valid driver’s licence?

(ii) Did the impoundment result in exceptional hardship?

CONCLUSION:

5On the evidence before us at the hearing, we 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 two grounds: (i) that she exercised due diligence, in attempting to determine that the driver, at the time of the impoundment, held a valid driver’s licence; and (ii) that the impoundment will result in exceptional hardship.

Due Diligence

8Section 50.2(3)(c) of the Act provides that a vehicle impoundment may be appealed if the owner exercised due diligence in attempting to determine that the licence of the driver, at the time of the impoundment, was not under suspension.

9In order to establish that the appellant exercised due diligence, within the meaning of s. 50(2)(3)(c) of the HTA, the appellant must prove that she made all reasonable efforts to determine that the licence of the driver was not under suspension.

10The appellant testified that Gordon Broadhead, the driver of the vehicle at the time of the impoundment, was her boyfriend. She stated that she was aware that his licence had been previously suspended but she believed it had been reinstated when she allowed him to drive her vehicle. She stated that her belief was based on what he had represented to her verbally in January 2022. She also testified that Mr. Broadhead rented a vehicle from Enterprise in February 2022 and submitted a copy of the rental agreement. She stated that this contributed to her belief that he had a valid licence, since car rental companies normally verify the driver’s licence before entering into rental agreements.

11The appellant stated that she had observed Mr. Broadhead’s licence lying on a table at her residence in February 2022. In response to a question from the panel, she indicated that she confirmed that the licence had not expired at that time. The appellant did not submit a copy of Mr. Broadhead’s driver’s licence to the Tribunal. She also acknowledged that she did not verify his licence immediately prior to allowing him to drive her vehicle. In response to a question from Ms. Velocci, the agent for the respondent, the appellant stated that she did not verify the status of the appellant’s licence with the Ministry of Transportation (MTO). She indicated that she was not aware that MTO had a free service which enables members of the pubic to verify the status of a driver’s licence.

12While the appellant took some steps to satisfy herself that Mr. Broadhead had a valid licence, we are not satisfied, on a balance of probabilities, that she took all reasonable steps to confirm the status of his licence before allowing him to drive her vehicle.

13The appellant may have been able to establish that she exercised due diligence if she had verified Mr. Broadhead’s licence immediately before allowing him to drive her vehicle and provided the Tribunal with a copy of the licence, that had not expired, which she verified. While the appellant indicated that she has not been in contact with Mr. Broadhead because he has been at a rehabilitation facility since April 11, 2022, she was able to contact him for a copy of the Enterprise rental agreement.

14For the above reasons, we find that the appellant did not exercise due diligence within the meaning of section 50.2(3)(c) of the Act.

Exceptional Hardship

15Section 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 we find that there is an alternative to the impounded vehicle, then we need not consider any other requirements.

16The appellant testified that she is a single mother who lives from pay cheque to pay cheque. She stated that she is employed as a school bus driver and as a cleaner for Merry Maids. She testified that she has not missed any work during the period of impoundment, as she is able to park the school bus at a school in her neighbourhood overnight and use the school bus during the day to get to her cleaning jobs. She indicated that she has the permission of her employer to use the school bus during the day to get to her other job and do errands.

17The appellant stated that she uses the school bus to drive her son to and from school. She indicated that her son has had to miss one or two swimming lessons during the period of impoundment. She also testified that her 18 year old daughter has needed to use public transportation and UBER to get to and from her part-time job at a restaurant during the period of impoundment.

18The appellant testified that she has groceries delivered to her home from a food bank.

19There is no doubt that the appellant has been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because she has had alternative modes of transportation available.

20Since the appellant did not satisfy the test that there was no alternative to the impounded vehicle, we do not need to consider the other provisions of s. 10 of the Regulation.

ORDER:

21Pursuant to subsection 50.2(5) of the HTA, we deny the appeal and confirm the impoundment.