Licence Appeal Tribunal
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:
Kevin Vickers Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Rupinder Hans, Member
APPEARANCES:
For the Appellant: Kevin Vickers, Self-represented For the Respondent: Leila Pereira, Agent
Heard by Teleconference: February 10, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1Kevin Vickers (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 14, 2023, when it was found driven by Jonathan Lemire, a driver without a valid driver’s 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 result in 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
6The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2016 GMC pickup truck;
(2) on January 14, 2023, the police discovered the impounded vehicle being driven by Jonathan Lemire; and
(3) Jonathan Lemire’s licence was under suspension for a Criminal Code conviction at the time it was impounded.
Due diligence
7I am not satisfied that the appellant has established, based upon a balance of probabilities, that he exercised due diligence in ensuring that Mr. Lemire had a valid driver’s licence.
8This ground of appeal requires the appellant to show that he took reasonable steps to determine that Jonathan Lemire’s driver’s licence was not suspended at the time the vehicle was detained and impounded. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner of the vehicle to confirm that Mr. Lemire’s licence was not then under suspension. The specific steps that amount to due diligence depend on the circumstances of each case.
9The appellant testified that Mr. Lemire worked part-time for his company since about 2020. In September 2022, he was hired full-time as a powerline technician. The appellant testified he operates a power services company and provides emergency power restoration services for several companies, including Hydro One, London Hydro, Brookfield Renewable Power, and Evolugen.
10The vehicle was impounded after the appellant allowed Mr. Lemire to use the pickup truck to go home from work. At the time, Mr. Lemire’s personal vehicle was broken.
11The appellant testified that when Mr. Lemire first started his employment, he had provided a copy of his Alberta driver’s licence. The appellant testified that he can not locate the document now. The appellant believed that Mr. Lemire was licenced in Alberta and Mr. Lemire had told him that he was in the process of converting his Alberta licence to an Ontario licence. The appellant testified they are a small company and he takes people at their word.
12The appellant testified Mr. Lemire was asked several times since 2020 to provide a copy of his Ontario licence but he did not. He testified he tried to continue to follow up with Mr. Lemire, but given the pandemic, he had a lot on his plate as a small business owner.
13The appellant’s daughter, Victoria Vickers, testified that she began working for the company in about January 2022, and when she noticed there was no driver’s licence on file for Mr. Lemire, she asked him to provide his licence. He again advised that he was switching his Alberta licence to an Ontario licence, but he did not provide a licence. She testified that she texted him in June 2022 and called him in the spring of 2022 stating she needed his driver’s licence. She testified that she made several attempts to obtain his driver’s licence, but again he did not provide his licence.
14I note that Mr. Lemire continued to work for the appellant on a full-time basis from September 2022 until the time of the impoundment on January 14, 2023. While I note several attempts were made by the appellant and his daughter, both verbally and in writing, to obtain a copy of Mr. Lemire’s driver’s license, I do not find these were reasonable steps or rise to the level of required due diligence. Due diligence requires that the owner satisfy itself before allowing a person to drive its vehicle. Requesting evidence that the driver has a valid licence does not constitute due diligence unless the driver actually supplies that evidence.
15I further find there is no evidence offered to show that on the day the vehicle was loaned to Mr. Lemire on January 14, 2023, the appellant asked for proof of a valid Ontario driver’s license. I find the appellant did not take reasonable steps to determine that Mr. Lemire’s license was not suspended at the time he allowed him to use and drive the pickup truck.
16Instead, I find that during the course of Mr. Lemire’s employment, the appellant made some efforts to obtain a copy of the driver’s licence but did not take reasonable steps to ensure that Mr. Lemire had a licence that was not under suspension. I am not satisfied the appellant exercised due diligence.
17In my view, due diligence required the appellant to do more than he did to ensure that Mr. Lemire held a valid licence. Although the appellant may have believed Mr. Lemire had a valid driver’s licence in Alberta or Ontario, he did not take the reasonable steps available to him to ensure this was so and I find that his belief was unjustified and unreasonable.
18I find that the appellant did not exercise due diligence in accordance with the Act. His appeal pursuant to s. 50.2(3)(c) of the Act must fail.
Exceptional Hardship
19Section 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.
20Subsection 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.
21If 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.
22If 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.
23I find the appellant has not established that there is no alternative to the impounded vehicle available.
24The appellant testified the impounded pickup truck was used on a daily basis in his business and is crucial to the company’s operations as it is outfitted with lighting and equipment not available with a rental vehicle. The vehicle is used to attend job sites. The appellant testified that he cannot rent a replacement vehicle as the impounded vehicle is part of a fleet which are all equipped with needed radio equipment.
25The appellant also testified that, in addition to the impounded pickup truck, he has one other pickup truck and five big trucks. He testified that the pickup truck is licensed in Quebec and he likes to keep it there. He further testified that it is hard to access off road places with the larger trucks and that they could but ideally, they would not. He testified that the impoundment of the pickup truck has had a negative impact on his business.
26The appellant testified that while the company needs the impounded pickup truck, in the interim, it is using a similarly equipped pickup truck. He acknowledged that he is using other trucks to make do for now. I find the evidence establishes that the appellant has an alternative to the impounded vehicle. While the alternative vehicle may not be ideal for the appellant and his business, it is nonetheless, available and being used for just such.
27I find 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 and expense, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.
ORDER
28For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Rupinder Hans, Member
RELEASED: February 23, 2023