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:
Eva Derocher Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Eva Derocher, self-represented
For the Respondent: Leila Pereira, Agent
Date of Teleconference Hearing: April 12, 2023
Overview
1Ms. Eva Derocher (“appellant”) appeals the impoundment of her 2014 Hyundai (“vehicle”).
2Under the Highway Traffic Act (“Act”) a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence is under suspension because of convictions for certain drinking and driving offences. In this case, the appellant’s vehicle was impounded for 45 days when police discovered it being driven by a person whose licence was under such a suspension.
3According to the appellant, she let her daughter (who holds a valid licence) drive her vehicle and her daughter let a person drive it whose licence was suspended. The appellant was unaware that her daughter permitted someone else to drive her vehicle, and her daughter was unaware that the licence of the person she let drive was under suspension.
4The appellant appeals the impoundment on two grounds – firstly that she exercised due diligence in attempting to ensure that her vehicle was being driven by a person whose licence was not under suspension, and secondly that the impoundment will result in exceptional hardship.
5For the reasons set out below, I conclude that in the present circumstances due diligence has not been established and the impoundment will not result in “exceptional hardship” as that term is used and limited by the Act and regulations. I have therefore confirmed the impoundment.
THE LAW
6Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence is under suspension in certain circumstances, including suspension because of an earlier drinking and driving offence.
7Under ss. 50.2(1) and (5) of the Act, the owner of the impounded vehicle may appeal the impoundment to this Tribunal, and on appeal the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle. If the Tribunal orders release, the costs of the impoundment will be paid by the Registrar.
8Section 50.2(3) of the Act allows only five grounds on which an owner may appeal and on which the Tribunal may order release, and they include the two grounds the appellant relies upon in this case:
that the owner exercised due diligence in attempting to determine that the driver of the vehicle when it was impounded was not then under suspension; and
that the impoundment will result in exceptional hardship.
9The onus is on the appellant to establish the facts that support a ground of appeal on a balance of probabilities.
10With respect to the ground of exceptional hardship, a regulation made under the Act (O. Reg. 631/98 (“regulation”)) sets out the factors that the Tribunal is required to consider in deciding whether an impoundment will result in exceptional hardship.
11Section 10 of the regulation provides that the Tribunal must consider whether there is an alternative to the impounded vehicle. The onus is on the appellant to establish that there is no viable alternative. To show that no alternative is available, the regulation requires the owner to demonstrate that every reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
12If no alternative to the impounded vehicle is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
13The regulation specifically states that the Tribunal may not consider inconvenience to any person in determining whether the impoundment will result in exceptional hardship.
DUE DILIGENCE
14The grounds upon which an owner may appeal an impoundment, and the grounds upon which the Tribunal may order release of a vehicle, are limited and specific. One of those grounds is where:
the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was …. impounded was not then under suspension. (Act, s. 50.2(30(c))
15Exercising “due diligence” generally means taking all steps that a prudent person would reasonably be expected to take in the circumstances to determine that the licence of the driver of her vehicle when it was impounded was not under suspension.
16The appellant argues that she lent her vehicle to her daughter who was going out with friends. Her daughter has a valid driver’s licence. She consumed some alcohol and instead of driving the vehicle herself, she let another young person drive. That person’s licence was under suspension for a previous drinking and driving offence.
17According to the appellant, her daughter was unaware that the driver’s licence was under suspension. The appellant does not know and has never met the driver. She states that she would never knowingly let a person with a suspended licence drive her vehicle. In the appellant’s view, she exercised due diligence in this case by lending the vehicle to her daughter who had a valid licence.
18It seems questionable whether this ground has any applicability in the present circumstances. It allows an appeal where the owner lets another person operate their vehicle and takes all reasonable steps to ensure that the licence of the driver who was driving the vehicle at the time it was impounded is not under suspension. In this case the appellant was unaware that her daughter permitted someone else to drive her car and the appellant therefore had no opportunity to take any steps to confirm the status of that driver’s licence.
19It seems that this ground of appeal simply does not apply in the present circumstances. However, even if I consider the appellant’s daughter to be acting as the “owner” of the vehicle, there is no evidence that she took any steps to determine that the driver’s licence was not under suspension. It seems that at a minimum due diligence would require that the appellant’s daughter at least view the driver’s licence and confirm that it was apparently valid.
20In summary, I conclude that the evidence is insufficient to establish due diligence in the present circumstances.
EXCEPTIONAL HARDSHIP
21To conclude that the impoundment will result in exceptional hardship, the regulation requires the Tribunal to consider whether an alternative to the impounded vehicle is available and, if there is no alternative, whether the impoundment will result in a threat to the health and safety of any person. The Tribunal shall not consider inconvenience to any person and the Tribunal may only consider financial loss or loss of employment opportunity if the loss will be “immediate, significant and lasting”.
22In the circumstances of this case, I cannot conclude that the impoundment will result in “exceptional hardship” as that term is used in the Act and regulation. The appellant and those in her household who ordinarily use the impounded vehicle have a viable alternative to meet their essential transportation needs and there is no suggestion that the impoundment will negatively impact their health or safety.
23The appellant resides with her spouse and three children in a rural area about 20 minutes outside of Leamington, Ontario. According to the appellant, there is no public transportation, UBER is not available, and taxis are scarce and expensive.
24However, in addition to the impounded vehicle, there are two other licenced and operational vehicles available to the household. The appellant’s husband has a vehicle registered to him and the appellant has two vehicles registered to her - the 2014 Hyundai (the impounded vehicle) and a 2016 Ford.
25The impoundment of the Hyundai has left the appellant’s household with two vehicles. The appellant and her spouse operate an insulation installation business that employs the appellant, her spouse, and her son. The appellant’s spouse requires his vehicle for the business leaving the Ford to meet the transportation needs of the appellant, her daughter, and her son. The business cannot be effectively operated on-line and the son requires a vehicle to visit work sites and conduct sales activity in the surrounding area. The sales function is essential to the business, and the son uses the Ford for that purpose on most days, often leaving the appellant and her daughter without immediate access to a vehicle. The appellant’s daughter requires regular transportation to get to work in Leamington. The appellant considers the cost of renting a vehicle for the impound period prohibitive.
26According to the appellant, managing the transportation needs of the household without the impounded vehicle has been difficult, stressful on her family, and her son has occasionally missed appointments because of lack of transportation. However, the appellant also testified that the family has experienced no significant difficulty in obtaining groceries and household necessities, her daughter has not missed any work due to the impoundment, and the impoundment has not resulted in any medical emergency, missed medical/health appointments, or an inability to obtain medications or medical/health services.
27I have no doubt the temporary loss of the impounded vehicle has been stressful, disruptive to the family’s routine, and seriously inconvenient for all concerned. However, the regulation specifically prohibits me from considering inconvenience when determining whether an impoundment will result in exceptional hardship.
28As a result, I conclude that the impoundment will not cause “exceptional hardship” as that term is used in the regulation and I have therefore confirmed the impoundment.
29I fully understand the appellant’s view that she is being penalized for something that was not her fault and stems from her daughter’s apparently responsible attempt to avoid driving after consuming alcohol. It appears that the driver who drove the appellant’s vehicle while under suspension bears most of the responsibility for the results of his incident. Although I have confirmed the impoundment based on the limited grounds of appeal available under the Act, the appellant does have an avenue of recourse. The Act provides that in circumstances like this an owner may take legal action against the driver to recover any costs or losses. According to the Act,
The owner of a motor vehicle that is impounded …. may bring an action against the driver of the motor vehicle at the time the motor vehicle was …[impounded]…to recover any cost or other losses incurred by the owner in connection with the impoundment. (Act, s 55.1(27))
ORDER
30Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
Released: April 21, 2023
Stephen Scharbach, Member