An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Ralph Iverson
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Ralph Iverson
For the Respondent: Leila Pereira
Heard by teleconference: July 26, 2022
1Ralph Iverson (the "appellant") appeals the 45-day impoundment of his 2010 Ford F-150 (the "vehicle") under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The vehicle was impounded on June 3, 2022. At the time of the impoundment, Shawna Lee Stephens ("Ms. Stephens") was driving the vehicle while her licence was under suspension.
2The appellant appeals on the grounds of due diligence and that the impoundment will cause exceptional hardship.
3For the reasons set out below, the Tribunal confirms the impoundment.
ISSUES TO BE DETERMINED
4The issues to be determined are whether the appellant exercised due diligence in attempting to determine that the driver's license of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension pursuant to s. 50.2(3)(c) of the Act, and whether the impoundment will result in exceptional hardship as defined in the s. 50.2(3)(d) of the Act and s. 10 of Regulation 631/98 (the "Regulation").
EVIDENCE AND ANALYSIS
5The respondent presented evidence which establishes that:
a. the appellant is the registered owner of the vehicle;
b. on June 3, 2022, the police discovered the vehicle being driven by Ms. Stephens;
c. according to the Extended Driver's Records Search for Criminal Code Convictions, Ms. Stephens' driver's status was suspended, cancelled, under suspension and never licensed at the time the appellant's vehicle was detained for the purpose of impoundment;
d. the appellant's driver's licence itself was under suspension at the time of the impoundment; and
e. the appellant retrieved his vehicle from impoundment on July 18, 2022.
6According to the appellant, he lives with his daughter, Patti Iverson, who does not have a driver's licence. The appellant testified that as his licence was suspended prior to the impoundment of the vehicle, he would previously have a neighbour drive him to appointments when necessary.
Due Diligence
7This ground of appeal requires the vehicle owner to show that he took reasonable steps to determine that the driver's licence was not suspended. In this context, due diligence requires more than assuming facts. It requires steps to be taken by the owner to confirm the driver's assertion that her 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 since Ms. Stephens moved in with his son approximately a year ago, she had borrowed the vehicle a number of times. The appellant testified that he had asked her at least a half dozen times if she had a valid driver's licence but had never insisted on her showing him the driver's license. He further testified that he had not checked online regarding Ms. Stephen's licence status as he didn't know that he could, and that he does not use the internet.
9The respondent submitted that verbally asking as to whether Ms. Stephens had a valid driver's licence is not due diligence. I agree. Insisting on and, indeed, seeing the driver's licence is the minimum requirement of attempting to establish due diligence. I find, therefore, that the appellant has not exercised due diligence in attempting to determine that the driver's licence of the driver of the vehicle was not then under suspension. This ground of appeal accordingly fails.
Exceptional Hardship
10Section 10 of the Regulation sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
11Subsection 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.
12If there is an alternative to the impounded vehicle, this ground of appeal fails. On the other hand, if the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.
13According to the appellant, during the period of the impoundment of the vehicle, he would either use a taxi, obtain rides from friends, or walk downtown to conduct errands. It was his testimony that he managed, albeit with some difficulty, to carry out his errands as prior to the impoundment. The appellant also testified that, as he was not licensed to drive prior to the impoundment, his situation did not change during the impoundment. He advised that he was able to do without the vehicle as he was "basically doing without it" already.
14I find that the appellant's testimony is forthright, reliable, and honest. The appellant's testimony indicates that he had adequate alternatives to the impounded vehicle. Therefore, it is unnecessary to consider the remaining criteria required to establish exceptional hardship. As such, I find that the impoundment did not cause exceptional hardship as defined by s. 10 of the Regulation.
ORDER
15For the reasons above, the Tribunal confirms the impoundment of the appellant's motor vehicle.
Licence Appeal Tribunal
Jeffery Campbell, Vice-Chair
Released: August 25, 2022