Enos Martin v. Registrar of Motor Vehicles, 2023 CanLII 13021

Date: 2023-02-16

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

Between:

Enos Martin

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Colin Osterberg, Vice-Chair

APPEARANCES:

For the Appellant: Dwayne Huxted, Counsel

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: February 14, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Enos Martin (the “appellant”), appeals the impoundment of his 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 15, 2023. At the time of the impoundment, the driver, Jason Warwick, was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

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 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.

3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ISSUES TO BE DETERMINED

4The first issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

5The second issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

EVIDENCE AND ANALYSIS

Preliminary Issue

6At the outset of the hearing, an issue arose with respect to the admissibility of documents served by the respondent Registrar of Motor Vehicles (“Registrar”) and which it asks the Tribunal to admit into evidence. Those documents were only provided to the appellant and the Tribunal 23 minutes before the time scheduled for the commencement of the hearing. The appellant objected to the admission of the Registrar’s documents on the basis that they were provided to the appellant after the date they were ordered to be produced at the Case Conference, and the appellant would be prejudiced by their late service.

7I determined that the documents should not be admitted into evidence. The appellant had prepared for the hearing and the documents were produced and served on the appellant too late to reasonably expect him to be able to respond to. It would be prejudicial to the appellant to admit the evidence in the circumstances. Rule 23.3 of the Tribunal’s Rules requires that documents the Registrar intends to present in evidence at an impoundment hearing be disclosed to the other party at least 5 days before the hearing and, while the Tribunal may exercise its discretion to permit disclosure to occur nearer the hearing date and reliance on such late evidence (See, Rule 9.4), as a starting principle, fairness requires that documents be served with enough time for the appellant to adequately prepare for the hearing. That did not occur in this case.

Background

8The appellant’s evidence is that he is the registered owner of the impounded vehicle, a 2020 Dodge Ram 2500 pickup truck. He testified that on January 15, 2023, the police discovered the impounded vehicle being driven by the appellant’s employee, Jason Warwick whose licence was under suspension for a Criminal Code conviction at the time it was impounded. This evidence is confirmed by the Notice to Registrar which was filed with the appellant’s Notice of Appeal.

Due diligence

9This 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 making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver’s assertion that his licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

10The appellant testified that he operates a cattle farm in Durham Ontario and has 12 or 13 properties which he leases to tenants. He normally hires one or two workers to assist him with the farm duties and to help him take care of his income properties. His employees are regularly required to operate the appellant’s vehicles as part of their jobs. He hired Mr. Warwick about three years ago and has employed him on-and-off since then.

11When he was hired, Mr. Warwick told the appellant that he had a valid driver’s licence and showed the appellant his licence card. The appellant accepted this as proof that Mr. Warwick had a valid licence. Since then, the appellant has asked to see Mr. Warwick’s licence five or six times and each time was shown Mr. Warwick’s licence card. In November 2022, the appellant took a photograph of Mr. Warwick’s licence card and placed it in a file. Unfortunately, one of the appellant’s vehicles was stolen in December 2022 along with the file containing the photograph. November 2022 was the last time the appellant asked to see Mr. Warwick’s licence.

12Sometime during the last three years, Mr. Warwick was stopped by police and was unable to produce proof of insurance and so the investigating officer contacted the appellant as owner of the vehicle. The appellant confirmed the insurance information and the police allowed Mr. Warwick to drive the vehicle from the scene. The appellant took this as proof that Mr. Warwick had a valid driver’s licence.

13In my view, due diligence required the appellant to do more than he did to ensure that his employee held a valid licence before allowing him to drive his vehicle at the time it was impounded. In circumstances where an employee is being hired and part of his job duties involve driving the employer’s vehicles, the vehicle owner has an obligation to take steps to independently verify that the employee’s driver’s licence is valid. This could have been done by conducting a driver’s licence search on the MTO’s website or by requiring Mr. Warwick to provide a driver’s abstract.

14Further, the Tribunal has consistently held that the owner’s obligation is to exercise due diligence at or near the time the vehicle is detained in order to be impounded. While that might be difficult in the case of an employer who requires an employee to operate its vehicles, the Tribunal is bound by the wording of the Act which requires that the owner exercise 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. It may be that due diligence would be shown by an employer who requires the employee to provide an abstract or obtains independent evidence of a valid licence by some other means at regular intervals, but the appellant did not do that. He simply relied on Mr. Warwick.

15I also find that the fact that the vehicle was not impounded on another occasion when Mr. Warwick was stopped by police does not amount to due diligence by the appellant. It does not appear to have been at or near the time the vehicle was detained in order to be impounded and, even if one might reasonably infer that Mr. Warwick’s licence was not suspended at that time, that does not lead to the conclusion that the appellant is entitled to rely on the past incident at the time of the impoundment that is the subject of this appeal.

16I find that the appellant has failed to prove on a balance of probabilities that he exercised due diligence in attempting to determine that his employee’s driver’s licence was not under suspension when the vehicle was detained in order to be impounded. His appeal pursuant to s. 50.2(3)(c) of the Act must fail.

Exceptional Hardship

17Section 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.

18Subsection 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.

19If 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.

20If 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.

21The appellant uses the impounded vehicle to transport himself and his employees to his various properties in order to plough tenants’ driveways in the winter and to maintain those properties as necessary. He has another pickup truck which he is now using, but says he needs the impounded vehicle as well. According to the appellant, the impoundment has not caused a problem in this regard so far since the weather has been good and he has not had to plough his tenants’ driveways, but he is worried that could change between now and when the vehicle is released.

22I am not satisfied that the appellant’s potential inability to plough his tenants’ driveways constitutes exceptional hardship. Moreover, I am not satisfied the appellant has considered every reasonable option to eliminate or mitigate this issue. Although he says he made inquiries of one vehicle rental dealer, he apparently did not attempt to determine whether there might be another plough operator he could retain if needed or whether other arrangements could be made to deal with a snow event should one occur before the vehicle is released from impoundment.

23The appellant also says that he normally uses the impounded vehicle to transport hay to his farm once a week in order to feed his cattle. He has been able to arrange to have the hay delivered while the vehicle has been impounded although it was late on one occasion, and it costs him $350 to have the hay delivered. In my view this is a reasonable alternative to the impounded vehicle with respect to this activity.

24Finally, the appellant says that he needs the impounded vehicle to transport his children to school, and that they have had to walk home on one occasion since the impoundment. The appellant did not present evidence that shows that the alternatives to the impounded vehicle which have been used to get his children to and from school, including by walking, are unreasonable. He says he has not investigated the possibility of renting a passenger vehicle for this purpose or for managing other day-to-day activities which I find would be another reasonable alternative to the impounded vehicle.

25I find that the appellant has not proven that there are no alternatives to the impounded vehicle available, and his 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 his appeal must fail on this ground.

ORDER

26For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.