Soknao Tieng v. Registrar of Motor Vehicles, 2023 CanLII 40107

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 14806/MVIA

In the matter of an 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:

Soknao Tieng Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Sarin Ty, Appellant’s husband For the Respondent: Andrew Sookhoo, Representative

HEARD: April 21, 2023

OVERVIEW

1Soknao Tieng, the appellant, appeals from the impoundment of her 2019 Toyota, the vehicle, on April 5, 2023 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s brother-in-law was found to be driving it in contravention of a condition that prohibits him from driving a motor vehicle that is not equipped with an ignition interlock device.

2The appellant appeals on three grounds: that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the 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 to her because she needs her vehicle to get to retail stores, medical facilities, and to provide transportation for another family member to medical appointments.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA.

ii. Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA.

iii. Issue 3: Will the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

result

4I find that the driver’s licence of the driver at the time it was detained in order to be impounded contained conditions including, a condition prohibiting him from driving a motor vehicle that is not equipped with an ignition interlock device and that the driver was in breach of the conditions of his driver’s licence at the time of impoundment. I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on grounds (b) that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, (c) 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, and (d), that the impoundment will result in exceptional hardship.

7Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver’s licence is under suspension , or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA

8I find that Sarou Ty was driving the vehicle in breach of the conditions on his driver’s licence at the time of impoundment and, as a result the impoundment of the vehicle was lawful under s. 55.1.

9The appellant’s husband Sarin Ty was the only witness at the hearing. Although Mr. Ty testified that his brother Sarou Ty was driving the vehicle at the time of impoundment and the brother’s driver’s licence was not then under suspension, this is not supported by the evidence. The appellant put forward no documentary evidence to establish this.

10The Registrar filed the records showing Sarou Ty at the date of impoundment had a G1 licence subject to the usual G1 conditions and also a condition that a mandatory ignition interlock device is required until 2028. The Registrar’s documentary evidence also establishes that, at the time of impoundment, Sarou Ty was driving the vehicle which was not equipped with a mandatory ignition interlock device.

Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

11I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that Sarou Ty’s had a valid driver’s licence that would allow him to drive the vehicle prior to he and the appellant allowing Sarou Ty to drive the vehicle.

12To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

13There is no evidence from the appellant that she exercised any due diligence at all.

14Mr. Ty testified that Sarou Ty told him he had a driver’s licence and that Mr. Ty “glanced” at it because Mr. Ty was very busy. However, Mr. Ty did not do anything else to check whether the licence had any conditions attached to it which would prevent him from being legally able to drive the vehicle.

15I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that Mr. Lobana’s driver’s licence was not under suspension at the time of impoundment.

Issue 3: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

16I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

17Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the 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.

18If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

19I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

20Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

21There is a second vehicle in the appellants household. Mr. Ty testified that he lives with the appellant, his wife, and that he owns a Toyota Tundra truck. Mr. Ty testified that, if need be, he will use his truck to transport family members and to obtain groceries and meet other needs although this is difficult for him because he uses the truck for his work and must remove tools from it before use. Mr. Ty testified that there is some public transportation available to he and the appellant in the municipality where they live and that they have access to Ubers and taxis if necessary. Mr. Ty testified that the appellant has not missed any work because she is able to car pool with others to her place of employment and that their five children have not missed any school because they can walk there. Mr. Ty also testified that the family physician has assisted by providing medical advice over the telephone for the children and that he and the appellant also have access to 911 services where they live.

22Mr. Ty said that it is very inconvenient for his wife to be without her vehicle because she has to get up two hours earlier to get to her work. Mr. Ty also testified that payment of the impoundment fee will be a hardship for the appellant.

23Vehicle records filed by the Registrar confirm that the appellant, in addition to the impounded vehicle, is the registered owner of four more motor vehicles although Mr. Ty said that they have all been sold including one vehicle which was sold to his sister. Mr. Ty brought forward no evidence to establish that he no longer owns these four vehicles and the records of ownership remain as of the date of the hearing.

24Although the Notice of Appeal indicates the appellant needs her vehicle to care for elderly family members, Mr. Ty did not give any details about this other than the ages of his mother and grandmother and that the appellant cares for them.

25The appellant testified that arranging alternate transportation is difficult and inconvenient for her. Inconvenience is not a factor which the Tribunal can take into consideration.

26I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

27I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including car pooling to work, rides and assistance from her husband Mr. Ty who owns a truck, and there is access to some publicly available transportation, Ubers, taxis. The school age children are walking to school and have not missed any school. The family physician has provided medical advice by telephone.

Conclusion

28The appellant has not established any of her grounds of appeal. The evidence is clear that the conditions on the driver’s licence of Sarou Ty would prohibit him from driving the appellants vehicle within the meaning of s. 50.2(3)(b) of the HTA.

29The appellant has not established that she exercised due diligence in attempting to determine that Sarou Ty’s driver’s licence was not under suspension when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

30I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

31Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.