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:
Diane Ramos
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: D. Ramos, Self-Represented
For the Respondent: L. Pereira, Agent
Heard by teleconference: March 23, 2023
Overview
1The appellant’s 2009 Chevrolet was detained and impounded on March 6, 2023, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to detain and impound a motor vehicle if the licence of the driver is suspended for a Criminal Code related reason. In this case, the appellant’s former husband, who had a suspended licence due to a Criminal Code drinking and driving offence, was driving the appellant’s vehicle.
2The appellant appeals the impoundment on the ground that she exercised due diligence in attempting to determine that the licence of the driver of her motor vehicle was not suspended and on the ground that the impoundment causes exceptional hardship (ss 50.2 (c) and (d) of the Act).
3Based on the evidence presented at the hearing, and for the reasons given below, I find the appellant failed to establish that she exercised due diligence or that the impoundment constitutes “exceptional hardship”. The appeal is dismissed, and the impoundment confirmed.
Analysis
The Appellant Did not exercise Due Diligence in Determining the Validity of the Driver’s Licence
4The due diligence ground of appeal at section ss 50.2 (c) of the Act requires the appellant to prove, on a balance of probabilities, 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…”.
5Due diligence requires the appellant to prove that she took “all reasonable care” (R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326). The Supreme Court has also held that “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.” (Lévis (City) v. Tétreault, 2006 SCC 12 at para. 30, [2006] S.C.J. No. 12 (S.C.C.)). One of the obligations imposed upon a motor vehicle owner under the Act is to ensure that their vehicle is not driven by someone without a valid driver’s licence.
6The appellant testified that she was aware that, at one time, her former husband’s licence was suspended, she knew he had a prior impaired driving charge, and knew that he had previously lost his license for medical related reasons. It was her understanding that, when he asked to borrow her vehicle on March 6, 2023, he no longer had a suspended licence.
7In the respondent’s submission, the appellant did not take reasonable steps to determine the validity of her former husband’s licence. She did not inquire about the licence, ask to see the licence, or verify the license status with the Ontario Ministry of Transportation.
8The appellant has not established that she exercised due diligence. This Tribunal has consistently interpreted due diligence to mean that the owner has taken all reasonable steps in the circumstances to ascertain whether the licence was under suspension. The appellant was aware of her former husband’s prior licence suspensions and impaired driving conviction. She did not, however, provide any evidence that she took reasonable steps to confirm that he had a valid license prior to loaning her vehicle. This ground must fail.
The Appellant Has Not Established “Exceptional Hardship”
9The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), a regulation made under the Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.
10In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss. This includes using another vehicle and making arrangements to do without a vehicle. If the owner fails to demonstrate the lack of an alternative to the impounded vehicle, then this ground of appeal cannot succeed.
11Sections 10 (2) and 10 (3) of the Regulation set out factors that may or may not be considered by the Tribunal in certain circumstances. The Tribunal cannot consider “inconvenience to any person” (ss. 10 (2) (a) and (3)).
12The appellant explained that she requires a vehicle to attend her two jobs. As a result, she has rented another vehicle. The appellant testified that she cannot afford the rental on her current salary and is accumulating credit card debt because of it.
13As the appellant has alternative means of transportation she has not established “exceptional hardship”. The impoundment of her vehicle has clearly caused the appellant significant emotional and financial stress. She does, however, have a rental vehicle and continues to attend work and meet her personal needs. The appellant has not established “exceptional hardship” as defined under the Act.
Order
14The Tribunal confirms the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Laura Hodgson, Member
Released: March 28, 2023