Licence Appeal Tribunal File Number: 14569/MVIA

In the matter of an 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:

Katlyn Hollands

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR: Colin Osterberg

APPEARANCES:

For the Appellant: Katlyn Hollands, self-represented

For the Respondent: Leila Pereira, Representative

HEARD: February 21, 2023

OVERVIEW

1Katlyn Hollands (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on January 16, 2023. At the time of the impoundment, John Paul Hogg was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

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

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

RESULT

4For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ANALYSIS

The appellant did not exercise due diligence

5I find that the appellant has failed to establish on a balance of probabilities that she exercised due diligence in attempting to determine that Mr. Hogg’s driver’s licence was not under suspension when the vehicle was detained in order to be impounded. Her appeal pursuant to s. 50.2(3)(c) of the Act must be dismissed.

6This ground of appeal requires the vehicle owner to show that she took reasonable steps to determine that the driver’s licence was not suspended. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver’s assertion that his or 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.

7The appellant says that she was visiting her best friend in Peterborough when the impoundment occurred. On the last day of her visit, her friend’s boyfriend, Mr. Hogg, asked to borrow the vehicle. She asked if he had a licence and he said yes. She then told him that she was serious and that she needed to know if he had a licence before she would allow him to drive. He said yes again. She then asked her friend if Mr. Hogg had a licence and she said yes.

8The appellant says she did not ask to see Mr. Hogg’s licence. She says she relied on her friend’s assurance that Mr. Hogg had a licence because she has known her friend for many years and believed her to be trustworthy.

9In my view, in the circumstances of this case, the appellant’s actions do not amount to due diligence. There were other steps that could have been taken to satisfy herself that the driver’s licence was not suspended. She could have, at a minimum, asked to see Mr. Hogg’s licence and did not. The appellant’s friend did not testify at the hearing, and as a result, there is no evidence to establish that the appellant’s friend had any independent knowledge of Mr. Hogg’s licence status. There is similarly no evidence that the appellant’s friend took any steps beyond assuming Mr. Hogg had a licence and I find this to be insufficient to satisfy the appellant’s obligation under this ground of appeal.

10I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that Mr. Hogg’s driver’s licence was not under suspension when the vehicle was detained in order to be impounded. Her appeal pursuant to s. 50.2(3)(c) of the Act must fail.

The appellant has not established exceptional hardship according to the Act

11I also find that the appellant has not established that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must be dismissed as a result.

12Section 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.

13Section 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:

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.

14If 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 be dismissed.

15If 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), 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.

16The appellant says that, unless her vehicle is released, she will not be able to get to her place of employment and she will not be able to driver her daughter to school and to her extra-curricular activities. She is afraid that she will lose her job and that she will not be able to pay her rent should that occur. The appellant also says that her daughter is scheduled to see her family doctor on February 23, 2023 in order to assess her mental health because of recent behavioural issues and says that she does not know whether she will be able to get her daughter to the doctor’s office if her car remains impounded.

17There are two weeks left in the impoundment period. To this point, the appellant says she has been able to use her mother’s vehicle to get herself to work and her daughter to school and to her other activities. She says that her mother’s vehicle is not in sound mechanical condition and that her mother is now refusing to allow the appellant to use it for fear that it will deteriorate further. Her mother has provided a letter to that effect which was filed in evidence at the hearing.

18In my view, the appellant’s evidence is implausible. I find it unlikely that after allowing the appellant to use her vehicle for more than a month since the impoundment, the appellant’s mother, on the day of the hearing, has determined that she is not willing to continue that for another two weeks and is unwilling to even allow the appellant to take her daughter to the doctor’s office for her appointment. This was not an allegation that was made in the appellant’s Notice of Appeal and I find it to be unlikely.

19The appellant also acknowledged that her common-law boyfriend has a vehicle that he does not use because he is currently not working. She initially said that she could not use that vehicle as an alternative to the impounded vehicle because it has not been insured since her boyfriend lost his job in December 2022. Later, when she was asked whether she had investigated whether the vehicle could be insured while her own vehicle is impounded, she said that the boyfriend’s vehicle could not pass a safety inspection, in part because his dog had chewed through a seatbelt. In my view, the appellant’s evidence in this regard was not credible.

20I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her 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. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground.

ORDER

21For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.