Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 14880/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:

Bernhard Floto Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

Appearances:

For the Appellant: Bernhard Floto, Self-represented For the Respondent: Andrew Sookhoo, Representative

HEARD: May 19, 2023

OVERVIEW

1Bernhard Floto, the appellant, appeals from the impoundment of his 2017 Ford Focus, the vehicle, on May 4, 2023 for 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 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 him because he needs the vehicle for his and his wife’s travel and appointment requirements.

ISSUES

3The issues in dispute are:

i. Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA.

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

result

4I 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 ground (c) 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 (d), that the impoundment will result in exceptional hardship.

Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

7The appellant testified that his step-daughter was driving the vehicle at the time of impoundment. The appellant testified that when they gave their daughter permission to use the vehicle, neither he nor his wife asked to see a valid driver’s licence. The appellant testified that they had no suspicion that she did not have a valid driver’s licence.

8The appellant’s wife did not testify at the hearing.

9I 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 the appellant’s step-daughter was not under suspension at the time of impoundment.

10To 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.

11Here, the appellant took no steps at all, let alone reasonable steps, to determine that the daughter had a valid driver’s licence before the keys to the vehicle were given to her. Based on the appellant’s testimony I find that his wife also took no steps on the appellant’s behalf to determine that the daughter had a valid driver’s licence before the key were given to her.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

12I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

13Section 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.

14If 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.

15I 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.

16Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

17The appellant testified that he has not missed any work because of the impoundment. His wife does not work. The appellant also testified that neither he nor his wife has missed any medical appointments because of the impoundment. The appellant testified that during the balance of impoundment period he and his wife will be able to manage as they have so far.

18The appellant also testified that he owns another vehicle, a 2002 Dodge which has been outfitted to meet his medical needs. Both he and his wife can drive this 2002 Dodge and have been doing so since the impoundment of the vehicle to obtain food and prescribed medicine and meet their other needs. The appellant testified that it is causing him hardship to be without his vehicle because it is difficult to balance all their transportation needs with only one vehicle.

19Vehicle records filed by the Registrar confirm the appellant’s ownership of this second vehicle.

20It appears from the testimony and submissions of the appellant that sharing a vehicle with his wife during the impoundment period is difficult and inconvenient. However, inconvenience is not a factor which the Tribunal can take into consideration.

21I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

22I find that the appellant owns a second vehicle which is an alternative to the impounded vehicle available to him during the impoundment.

Conclusion

23I find the appellant has not established that he exercised due diligence in attempting to determine that his step-daughter had a valid drivers licence.

24I 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

25Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.