Tribunals Ontario / Licence Appeal Tribunal
Date: 2022-05-26 Tribunal File Number: 13986 MVIA
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 for driving while suspended.
Between:
Ajanthan Yuhendran, Appellant
and
Registrar of Motor Vehicles, Respondent
Decision and Order
Adjudicators: Avril A. Farlam, Vice-Chair; Jeffrey Campbell, Vice-Chair
Appearances: For the Appellant: Ajanthan Yuhendran, Self-represented For the Respondent: Stella Velocci, Agent
Heard by Teleconference: May 09, 2022
Reasons for Decision and Order
Background
1Ajanthan Yuhendran (the “appellant”) appeals the 45 day impoundment of his 2009 GMC pick up truck (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) on April 4, 2022. At the time of impoundment, someone other than the appellant was driving the vehicle. The driver’s licence was suspended at the time of impoundment.
2The appellant appeals on the grounds that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment has resulted in exceptional hardship to him because he needs the vehicle for his business.
Issues
3The first issue to be determined is whether the appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act.
4The second issue to be determined is whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.
Result
5We find that the appellant’s evidence fails to support a finding that he exercised due diligence and that the impoundment will result in exceptional hardship. The impoundment of the appellant’s vehicle is confirmed.
Law and Analysis
6The owner of a vehicle impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (c), that the appellant exercised due diligence and on ground (d), that the impoundment will result in exceptional hardship.
Due Diligence
8To succeed on this ground of appeal, the appellant must show that he took reasonable steps to determine that the driver’s licence of the driver was not suspended. The appellant must establish that he took steps to confirm the information given to him by the driver that his licence was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.
9The appellant testified that he works part-time for a large company where he lives and also has a contracting business which he considers to be a full-time enterprise. He testified that the driver works for him as a contractor. He has known the driver since the summer of 2021 through previous jobs. The vehicle he owns is the only vehicle he uses to operate his business. When he travels to his part-time employment five times a week, his transportation is car pools or public transportation. The vehicle is needed in his business to transport materials to job sites.
10The appellant said he saw the driver’s licence in February or March of 2022, before he let the driver drive his vehicle. The appellant testified that he believed that if a driver’s licence is suspended, the appellant would have to surrender his licence and would not have it in his possession. As a result of this belief, the appellant said he was satisfied that the driver had a valid licence.
11The appellant gave his vehicle to the driver to deliver supplies and do contracting work in another municipality several hours drive away from the appellant’s residence. The appellant expected the driver to stay in the other municipality for about a week and complete the construction work that the appellant had assigned to the driver. The vehicle was impounded in the other municipality.
12The appellant admitted in cross-examination that he did not ask the driver to sign any documentation confirming that he had a valid driving licence before he let the driver drive his vehicle. The appellant also admitted that he did not check the status of the driver’s licence with the Ministry of Transportation, or on line, and did not know he could do so. The appellant did not produce any written contract he had with the driver and confirmed that the driver had not been added to his motor vehicle insurance policy even though the vehicle is the only vehicle he has for his contracting business. The driver did not testify at the hearing. The appellant said he has been “missing” since the impoundment.
13In our view, the appellant is using the vehicle to carry on his business and was required to do more than he did to ensure that the driver held a valid driving licence before allowing him to take his only vehicle on an expected trip of one week into another municipality several hours drive away from the appellant’s residence. The appellant’s due diligence obligation is not satisfied by confirming verbally with the driver that he had a valid driving licence and seeing the driver’s licence once, some time prior to the impoundment. The appellant accepted the driver at his word and took no steps to independently verify the validity of the driver’s licence by making inquires at the Ministry of Transportation or by conducting a search on its website. The appellant admitted he did not know how to, or that he could do this. The appellant did not use any other practical checking system and did not have the driver sign or provide a document confirming the validity of his licence. Had the appellant taken any of these steps, he would have discovered that the driver’s licence was not valid. Instead, even though the appellant is an experienced business person, he relied on the information given to him by the driver and his own belief that a driver with a suspended licence would have had to surrender his driving licence and did not make any further inquiries.
14Given the importance of the vehicle to his business and given that he had decided to allow the driver to take it on a trip to another municipality for a week and use it for work there, we find that the appellant did not take reasonable steps to determine that the driver’s licence was not suspended. We find that the appellant has failed to establish, on a balance of probabilities, that he exercised due diligence in attempting to determine that the driver’s licence was not under suspension when it was detained in order to be impounded within the meaning of s. 50.2(3)(c) of the Act.
Exceptional hardship
15We find that the impoundment will not result in exceptional hardship because the appellant had alternatives available to the impounded vehicle.
16Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that we must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
…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.
17If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), we must consider whether the impoundment will result in:
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
18We can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
19Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
20The appellant testified that he is able to attend his part-time employment by using car pools and public transportation. However, he needs to have the vehicle for his contracting business. Specifically, he needs a truck to transport materials and equipment to job sites. This is the only vehicle he owns and because it was impounded, he testified that he lost two contracting jobs so far, but other customers are prepared to reschedule.
21The appellant testified that he cannot afford to buy another truck to use in his business during the impoundment period, he was unable to rent a truck for more than one day because of cost and availability and was unable to borrow a truck from friends or family. As a result, the appellant has had to put his business “on hold” until the end of the impoundment period.
22In addition, the appellant testified that if he has to pay the impoundment fees to obtain release of his vehicle, this will be a large amount of money and which will be a financial hardship for him because he will have to borrow these funds and pay them back.
23While the appellant has established that the loss of use of his vehicle during the impoundment period is inconvenient for him, inconvenience is not a factor which the Tribunal can take into consideration.
24We may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.
25We find that the appellant has alternatives to the impounded vehicle available to him during the impoundment period. The appellant has the opportunity to lease another vehicle for his business, albeit at a cost. In the meantime, the appellant has received accommodation from all but two of his business customers in rescheduling.
26As a result, we find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
Order
27Pursuant to subsection 50.2(5) of the HTA, we confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Avril A. Farlam, Vice Chair Jeffrey Campbell, Vice Chair
Released: May 26, 2022