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:
Emmanuelle Pelletier Bertrand
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Emmanuelle Pelletier Bertrand, Self-Represented
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: May 20, 2022
Overview
1Ms. Emmanuelle Pelletier Bertrand (“appellant”) appeals the impoundment of her 2015 Cadillac (“vehicle”). It was impounded on April 17, 2022, for 45 days when it was discovered being driven by Mr. Esau Zamora, whose driver’s licence was under suspension due to a previous drinking and driving offence.
2The appellant appeals the impoundment on two grounds:
i. the appellant exercised due diligence in attempting to determine that Mr. Zamora’s licence was not then suspended.
ii. the impoundment will result in exceptional hardship.
ISSUE
3Should the Registrar of Motor Vehicles (‘Registrar”) be ordered to release the appellant’s vehicle on either of those grounds?
DECISION
4The impoundment will not result “exceptional hardship” as defined under the Highway Traffic Act (“Act”) and regulation.
5However, the appellant exercised due diligence in attempting to determine that Mr. Zamora’s driver’s licence was not then under suspension.
6Since the appellant was successful on the latter ground of appeal, I have directed the Registrar to release the appellant’s vehicle.
THE LAW
7Under section 55.1 of the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a driver whose licence has been suspended due to a conviction under the Criminal Code for certain drinking and driving offences
8Under section 50.2 of the Act, the owner of the impounded vehicle may appeal the impoundment to this Tribunal and, after holding a hearing, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
9The Act allows only five grounds upon which an owner may appeal, and they include the two grounds the appellant relies on in this case. Those two grounds are set out in section 50.2(3) of the Act, which states:
The only grounds upon which an owner may appeal […] and the only grounds upon which the Tribunal may order the Registrar to release the motor vehicle are:
(c) 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 […] impounded […] was not then suspended […]
(d) that the impoundment will result in exceptional hardship.
10The onus is on the appellant to establish the facts that support each ground of appeal.
11Ontario Regulation 631/98 (“Regulation”) sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
12Section 10 of the Regulation provides that:
i. the Tribunal must consider whether an alternative to the impounded vehicle is available.
ii. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
iii. the Tribunal shall not consider inconvenience to any person.
iv. financial loss and loss of employment opportunities may be considered in determining exceptional hardship if the owner demonstrates that:
a. there is no available alternative to the impounded vehicle.
b. the loss will be immediate, significant, and lasting.
c. the impact of the loss will be on someone ordinarily transported by the vehicle.
d. the impact of the loss will be on someone other than the suspended driver.
13To show that no alternative to the impounded vehicle is available, the Regulation requires the owner to demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
ANALYSIS
(a) Exceptional Hardship
14I conclude that the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is used in the Act and Regulation.
15The Regulation requires that the Tribunal must first consider whether there is any alternative to the impounded vehicle and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.
16The appellant testified she was laid off from work just before her vehicle was impounded. She is currently unemployed and receiving Employment Insurance benefits. She supports her two-year-old child with the help of some child support from Mr. Zamora. However, according to the appellant, her expenses which include rent, car payments, insurance, and now the cost of the impoundment, are high and her current income is low.
17The appellant lives in Orleans, a suburb of Ottawa, and her area is served by public transit. However, in order to attend work on a daily basis, she must get her child to day care each day before work at 8 am. After being laid off, she found a job and attempted to manage day care and getting to work on time, but it was impossible using public transport. She lost that job because she was always late. She was offered another position with another employer but had to decline it because it was not located close enough to public transit routes to make it viable. Taking taxis, UBERs or renting vehicle is beyond her income and she doesn’t have a credit card.
18With respect to an alternative to the impounded vehicle, the appellant testified that another vehicle is registered to her, but it is not running. Its transmission needs expensive repairs that she cannot currently afford. She does not own or have access to any other vehicles. Most of her family is in Quebec and not close enough to assist. She stated that on her budget she cannot afford to take taxis or UBERS. To get groceries she walks to the grocery store and takes public transportation back.
19In this case, the appellant’s only viable alternative to the impounded vehicle is public transportation. Public transportation is suitable for some limited purposes such as getting groceries, but it is inadequate as a means of getting to work, because to get to work, the appellant must also get her two-year old to day care.
20The Act also requires that I consider whether the impoundment will result in a serious threat to the health and safety of anyone ordinarily transported by the vehicle. The appellant testified that the impoundment prevented her from attending one doctor’s appointment regarding her child’s ear infection. She relied on public transportation but did not arrive in time. The appointment was re-scheduled but in the meantime her child’s infection became worse. While I accept the appellant’s testimony that she missed one medical appointment for her child, the evidence does not establish that the child’s health or safety was in serious jeopardy as a result of the impoundment.
21The appellant’s main concern appears to be the financial cost and the loss of employment opportunities resulting from the impoundment. However, according to the regulation, the Tribunal may only consider financial loss and loss of employment opportunities as exceptional hardship if the loss is proven to be “immediate, significant, and lasting”.
22In his case I am prepared to accept that in the appellant’s circumstances the loss of income and employment opportunities experienced as a result of the impoundment are immediate and significant. However, its effect will not be lasting.
23The appellant is presently receiving EI benefits which soften the financial impact. Based on the evidence presented, the appellant will be able to readily find employment once the impoundment is over and she has a vehicle that will allow her to manage both work and day care. In other words, there is no evidence upon which I can conclude that the effect of the financial loss or loss of employment will be lasting.
24I therefore conclude that the appellant has not meet the onus of establishing that the impoundment will result in exceptional hardship as that term is used in the Act and Regulation.
(b) Due Diligence
25The onus is on the appellant to demonstrate that she took the steps that would be expected from a reasonable and prudent person under the same circumstances to confirm that Mr. Zamora’s driver’s licence was not suspended at the time of the impoundment. In the present circumstances, I conclude that the appellant has met that onus.
26Mr. Zamora is the father of the appellant’s two-year-old child. On the day her vehicle was impounded, they had been visiting relatives and were on the way home. The appellant was tired and asked Mr. Zamora to drive. He was stopped by police for speeding. The vehicle was impounded when police determined that Mr. Zamora’s licence was under suspension for a previous drinking and driving offence.
27The appellant testified that when she asked Mr. Zamora to drive, she believed that he had a valid licence. She was aware that his licence had been suspended earlier in 2021 (she was unclear exactly when). However, according to the appellant, Mr. Zamora paid the “reinstatement fees” and the MTO sent Mr. Zamora a driver’s licence in the mail.
28She had seen the physical licence on occasion – Mr. Zamora produced it as ID in her presence and she was aware that it was not expired. It appeared to be valid on its face and she assumed it was. Mr. Zamora did not tell her that it was actually under suspension due to the driving and driving offence.
29The MTO’s driver’s record for Mr. Zamora indicates that his licence was suspended for the first time in June 2021 due to the drinking and driving offence. There is no record of any suspension before that date. After that date, Mr. Zamora’s licence was suspended again in August 2021 for 90 days due to demerit points and again in October 2021, due to unpaid fines. Based on Mr. Zamora’s driving record, the “reinstatement fees” the appellant says were paid may have actually been the unpaid fines that resulted in the additional suspension in October 2021.
30The MTO provides an online service that allows anyone to enter an Ontario driver’s licence number and confirm whether that licence is suspended or not. The appellant testified that she didn’t use that service because she was unaware of it. She only found out about it after the impoundment and in the course of this proceeding. She moved to Ontario from Quebec two years ago and Quebec does not offer that service.
31I accept the appellant’s testimony that she was under the impression that Mr. Zamora’s had been validly reinstated because he received a physical driver’s licence card from the MTO in the mail sometime after June 2021. Although Mr. Zamora must have known his licence was under suspension because of the drinking and driving offence, he apparently led the appellant to believe that his licence was valid.
32In my view, a reasonable person would assume that the MTO would not send a driver’s licence to a person whose licence was suspended. Mr. Zamora failed to tell the appellant the truth about the suspension and that, together with the apparently valid physical driver’s licence, contributed to what I consider to be appellant’s reasonable belief that Mr. Zamora held a valid licence.
33The Registrar argues that reasonable and prudent person would have checked Mr. Zamora’s licence through the MTO’s online service. Although in hindsight that would have been appropriate, I am not convinced that a reasonable, prudent person in the appellant’s circumstances would have taken that step. The appellant testified that the service is not known generally, and she was unaware of it as it is not a service available in Quebec where she lived until two years ago.
34In summary, given the circumstances of this case, I conclude that the appellant exercised due diligence in attempting to determine that Mr. Zamora’s licence was not suspended when she allowed him to drive her car on April 17, 2022.
(c) Summary
35The appellant has established that she exercised due diligence in attempting to determine that Mr. Zamora’s licence was not under suspension at the time the vehicle was impounded. As a result, as set below, I have ordered that the appellant’s vehicle be released from impoundment.
ORDER
36Pursuant to s.50.2(5) of the Highway Traffic Act, I direct the Registrar to release the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Date of Release: June 13, 2022