Licence Appeal Tribunal File Number: 15190/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Tyler Paxton

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Tyler Paxton

For the Respondent:

Andrew Sookhoo, Representative

HEARD: October 12, 2023

OVERVIEW

1The appellant, Tyler Paxton, appeals from the 45-day impoundment of a 2019 GMC pickup truck (the “vehicle”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle is jointly owned by the appellant and his mother Dawn Paxton. The vehicle was impounded on August 10, 2023. At the time of the impoundment, the appellant was driving the vehicle while his licence was suspended.

2The appellant filed his appeal late and, consequently, sought an order extending the time to file the appeal. By Motion Order, dated October 4, 2023, the Tribunal granted the appellant’s motion for an order granting an extension of time. The 45-day impoundment period ended on September 24, 2023, and the vehicle was released to the appellant.

3The appellant appeals on the grounds that he exercised due diligence in attempting to determine that his driver’s licence was not under suspension or subject to an ignition interlock condition as a result of a Criminal Code conviction, and that the impoundment will cause exceptional hardship.

ISSUES

4The issues in dispute are:

i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

ii. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

5I find the appellant has not established that he exercised due diligence in accordance with section 50.2(3)(c) of the Act, or that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

6The respondent presented uncontradicted evidence which establishes that:

i. the appellant and his mother Dawn Paxton are the registered owners of the impounded vehicle, a 2019 GMC motor vehicle;

ii. on August 10, 2023, the police discovered the impounded vehicle being driven by the appellant; and

iii. The appellant’s driver’s licence was suspended at the time of the impoundment.

Whether the appellant exercised due diligence in accordance with the Act

7The burden is on the appellant to prove on a balance of probabilities that he exercised due diligence in attempting to determine that his driver’s licence was not suspended. I find that the appellant has not met his burden.

8This ground of appeal requires the vehicle owner to show on a balance of probabilities that he took reasonable steps to determine that the driver’s licence was not suspended at the time the vehicle was detained in order to be impounded. In this context, due diligence requires more than making assumptions of the facts. It requires specific steps to be taken by the owner to confirm that the licence was not suspended. The specific steps that amount to due diligence depend on the circumstances of each case.

9I find the appellant did not take reasonable steps to confirm that his driver’s licence was not suspended at the time the vehicle was detained in order to be impounded.

10The appellant testified that his Ontario driver’s licence was suspended after he was convicted of a drinking and driving related offence, specifically fail or refuse to provide breath or blood sample. The offence occurred on March 15, 2015, and he was convicted on May 22, 2015. The appellant testified that he thought because he completed the ALCOLOCK program in Newfoundland his licence was no longer suspended or subject to an interlock condition. However, I note that he testified he did not receive any correspondence from the Ministry of Transportation (“MTO”) advising that his licence was reinstated/no longer suspended, nor did he receive a physical Ontario driver’s licence. He testified that he was moving around a lot and maybe that is why he did not receive any MTO correspondence.

11The appellant testified that from 2022 to 2023 he tried to change his Newfoundland driver’s licence to an Ontario driver’s licence after he relocated to Ontario. He made multiple attempts, in person and on the phone, without success. He testified that he was told that his licence was suspended and he was also subject to an interlock condition. He believed that this was a mistake or a clerical error. He believes he did not receive clear instructions from the MTO. He then contacted his local elected official who told him that there was a substance use assessment form that needed to be completed and submitted for medical review. I note that the substance use assessment form was mailed to the appellant on September 9, 2019. He testified that he had a medical professional complete the substance use assessment form on July 23, 2023, and submit it for medical review. The appellant testified that he thought he had done what was required of him, and that now his driver’s licence was no longer subject to a suspension and he was able to drive. The respondent testified that the substance use assessment form was not received or assessed by medical review.

12I note that the appellant did not receive any correspondence from the MTO confirming receipt of the substance use assessment form, or a determination, or any information on the status of his licence. He did not follow up with the MTO to obtain his physical licence or seek the results of the medical review. I find that the appellant probably knew, and certainly ought to have known, that his licence remained suspended. Instead, the appellant testified that he thought he was able to drive. He made an assumption and I find that he did not take reasonable steps to follow up on the status of his driver’s licence.

13The appellant further testified that, at some point after the August 10, 2023 impoundment, he realized that the medical form had not been submitted for medical review so he resubmitted on August 24, 2023. I note that by letter dated September 6, 2023 from the MTO, the appellant was advised that his medical report had been approved and the restriction indicating ignition interlock was removed.

14The appellant gave evidence about incidents which he says caused him to believe that his licence was no longer suspended. He testified that, during the time of the licence suspension, two police officers told him that he was allowed to drive and he relied upon their conclusions. He argues that they did not charge him with driving without a licence or other related offences. He also relied upon the assertion of his local elected official who told him the same. I find that the failure of the police officers to charge the appellant with driving while suspended or impound the vehicle he was driving, was not explained at the hearing. I accept that these incidents might lead the appellant to believe that his licence was not suspended, except for the fact that, the MTO continued to tell him that his licence was suspended. I find the appellant knew or ought to have known that his driver’s licence continued to be suspended. I do not accept that it was reasonable for the appellant to believe that his licence was not suspended.

15I note that this ground of appeal requires the vehicle owner to exercise due diligence by showing that he took reasonable steps to determine that his driver’s licence was not suspended at the time the vehicle was detained in order to be impounded. In my view, due diligence required the appellant to do more than he did and I find that he did not take reasonable steps. The appellant has not met his burden.

16Given the evidence before the Tribunal, I find that the appellant did not exercise due diligence under the Act to determine that his driver’s licence was not suspended at the time the vehicle was detained in order to be impounded.

Whether the impoundment will result in exceptional hardship

17The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find that the appellant has not met his burden.

18Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

19Subsection 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.

20If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

21If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3) of the Regulation, if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

22I find the appellant failed to prove that no alternative to the impounded vehicle was available. The appellant testified that, during the impoundment period, he was regularly using public transportation and Ubers. He testified that he would take public transportation to work and an Uber to get back home after work. Sometimes if he was running late for work, he would also take an Uber to work. He testified that he was using Ubers to get around even though they are pricey and inconvenient. I note the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

23I further note the appellant’s mother and co-owner of the vehicle has her own motor vehicle that she has been utilizing. She testified that she drove her 2011 Mazda motor vehicle to attend to her daily tasks.

24I find the evidence before the Tribunal establishes that alternative means of transportation were available to the appellant. I find that the evidence establishes that, during the impoundment period, the appellant used Ubers and public transportation to complete his essential tasks.

25Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.

26Although the impoundment has resulted in inconvenience, the appellant has failed to establish exceptional hardship under the Act and the appeal must fail.

ORDER

27On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.