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:
Crystal Halls
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISON AND ORDER
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: C. Halls, Self-Represented
For the Respondent: L. Pereira, Agent
Held by teleconference: April 13, 2023
Overview
1The appellant’s 2017 Kia was detained and impounded on March 24, 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 impound a motor vehicle if the driver’s licence is subject to an ignition interlock condition and the vehicle is not so equipped.
2The appellant’s partner was driving her vehicle and was stopped by police. It was discovered that he had a condition on his licence prohibiting him from driving without an ignition interlock device. The appellant’s vehicle was not equipped with this device.
3The appellant submits that she exercised due diligence in attempting to determine that her partner’s licence was not subject to conditions (s. 50.2(3)(c)). She also appeals on the ground that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).
4Based 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 will result in 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
5Due diligence requires the appellant to prove that she took “all reasonable care” in the circumstances (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 or who is subject to the condition requiring an ignition interlock system.
6The appellant testified that she was aware that her partner had a dated impaired driving conviction on his record. Both she and her partner believed that if he completed the necessary course (Back on Track) and waited one year he would not be required to use interlock ignition when driving. The appellant’s partner completed this course in 2022. The appellant did not ask to see her partner’s licence or take steps to verify that there were no conditions on his license.
7Documents provided by the respondent established that the driver of the vehicle, the appellant’s partner, was convicted of impaired driving in 2010. This resulted in his license being suspended for one year and until completion of the requisite course. The appellant’s partner’s extended driving record indicates that, until August 8, 2023, his licence is subject to the condition that any vehicle driven requires an ignition interlock.
8In the respondent’s submission, the appellant did not take reasonable steps to determine the validity of her partner’s licence. She did not ask to see the licence or verify the licence status with the Ontario Ministry of Transportation.
9The 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 is valid or subject to conditions. The appellant was aware of her partner’s prior impaired driving conviction and suspension. She did not, however, provide any evidence that she took reasonable steps to confirm that he had a valid licence prior to permitting him to drive her vehicle. This ground must fail.
The Appellant Has Not Established “Exceptional Hardship”
10The 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.
11In 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.
12Sections 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)).
13The appellant explained that she requires a vehicle to attend work. The appellant owns her own cleaning business and additionally does bridal makeup and hair on weekends. She provided references from her employers and social media posts indicating that she excels at her work.
14Since her vehicle has been impounded, the appellant has been taking taxis to work or arranging transportation with friends and clients. She noted that taking taxis is expensive and she is under significant financial stress because she is saving money for her upcoming wedding.
15As the appellant has alternative means of transportation, she has not established exceptional hardship. The impoundment of her vehicle has clearly caused the appellant emotional and financial stress. She has, however, been able to
continue to attend work and to meet her personal needs. The appellant has not established “exceptional hardship” as defined under the Act.
Order
16The Tribunal confirms the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
_______________________
Laura Hodgson, Member
Released: April 18, 2023