Suzanne Thomson v. Registrar of Motor Vehicles, 2023 CanLII 52404

Licence Appeal Tribunal File Number: 14934/MVIA

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 in contravention of an ignition interlock condition.

Between:

Suzanne Thomson Appellent

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Suzanne Thomson, Self-represented For the Respondent: Andrew Sookhoo, Agent

Heard by Teleconference: June 9, 2023

Overview

1Ms. Suzanne Thomson (“appellant”) appeals the impoundment of her 2016 Honda CRV (“vehicle”).

2It was impounded on May 9, 2023, when police discovered it being driven by the appellant’s partner (“driver”) whose licence was subject to a condition that prohibited him from driving a vehicle unless the vehicle is equipped with an ignition interlock device.

3The appellant’s vehicle was not equipped with such a device and the appellant’s vehicle was impounded for 45 days as required under the Highway Traffic Act (“Act”). It will be released on June 23, 2023.

4The appellant appeals the impoundment on two grounds:

• the appellant exercised due diligence in attempting to determine that the driver’s licence of her partner was not then subject to the ignition interlock condition; and

• the impoundment will result in exceptional hardship.

ISSUES

5Did the appellant exercise due diligence in attempting to determine that the driver’s licence of her partner was not subject to an ignition interlock condition?

6Will the impoundment result in exceptional hardship as that term is used in the Act and regulations?

RESULT

7For the reasons set out below, I conclude that the appellant did not exercise due diligence in attempting to determine that her partner’s driver’s licence was not subject to the condition, and the impoundment will not result in “exceptional hardship” as that term is used and limited by the Act and regulations.

8I have therefore confirmed the impoundment.

ANALYSIS

(a) The Law

9Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it is being driven by a person in contravention of a licence condition prohibiting the driver from operating a vehicle unless equipped with an ignition interlock device.

10Under ss. 50.2(1) to (5) of the Act, the owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

11Section 50.2(3) of the Act allows only five grounds on which an owner may appeal, and they include the two grounds that the appellant relies on in this case. The onus is on the appellant to establish the facts that support each ground on a balance of probabilities.

12With respect to the appellant’s second ground - 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 determining whether an impoundment will result in exceptional hardship.

13Section 10(1) 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 available alternative. If 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. The Tribunal is prohibited from considering inconvenience in deciding whether the impoundment will result in exceptional hardship.

(b) Due Diligence

14Due diligence in this context means taking all steps that a prudent person would reasonably be expected to take to determine that the driver’s licence was not subject to an ignition interlock condition. I conclude that the appellant has not demonstrated that that she exercised due diligence to determine the true state of the driver’s licence.

15The appellant and the driver are in a domestic relationship and the appellant let the driver use her vehicle under the impression that his licence was valid and not subject to a condition. She was aware that the driver had been convicted for a drinking and driving offence and that his licence has been suspended for a year as a result. She also thought that his licence was subject to the condition for a year after the suspension was complete, but she believed that the year had passed, and the condition was no longer applicable. The appellant testified that the driver was also under that impression

16However, the MTO’s records established that the condition was still attached to the driver’s licence at the time of impoundment. They show that the driver was convicted in June 2015 for a Criminal Code drinking and driving offence and his licence was suspended until June 2016. After the suspension was over, the driver’s licence was subject to the ignition interlock condition for at least a year.

17According to a regulation under the Act (O. Reg. 287/07, s. 19.3(5)), and the MTO’s remedial driving program, after the ignition interlock condition has been in place for a year, a driver may apply for its removal, but the condition remains on the driver’s licence until the driver makes that application. In order to successfully apply, the driver is required submit a completed substance use assessment form completed by a health care professional. The information on that form is reviewed by the MTO’s medical review section and a decision is made whether to remove the condition.

18In this case, the driver’s licence was suspended in June 2015 and remained suspended until June 2016. The ignition interlock condition was attached to the driver’s licence as of June 2016 and the driver has never applied for its removal. In December 2018 the MTO sent the substance use assessment form to the driver with an information sheet stating that he may be eligible to have the condition removed but to do so he must submit the substance use assessment form completed by a health care professional. The MTO received no response to that communication, the assessment form was never submitted, and the condition remains on the driver’s licence.

19I have no doubts about the sincerity of the appellant’s testimony. However, that impression was mistaken, and the driver’s licence was still subject to the condition at the time of impoundment. The MTO apparently made the terms of the program clear to the appellant in its December 2018 communication and that communication specifically states that if the completed assessment is not received by the MTO the condition will remain on the licence indefinitely.

20It appears that the appellant assumed, likely based on what she was told by the driver, that his licence was no longer subject to the condition. However, she took no steps to verify that information or check with the MTO to ensure that the driver’s licence was unconditional. In my view, considering the driver’s past conviction, a prudent person would verify the validity of the driver’s licence and not simply proceed on the driver’s own assurance and assumptions about how the MTO’s program works. I conclude that the appellant has not demonstrated that she exercised due diligence in attempting to determine that the driver’s licence was not subject to the condition.

(c) Exceptional Hardship

21To conclude that the impoundment will result in exceptional hardship, the regulation requires me to consider whether the appellant has no alternative to the impounded vehicle.

22The appellant lives in New Lowell, Ontario and commutes each day to Orillia, about a 45-minute drive. The appellant owns a plated and operational second vehicle – a 2010 Honda - that she is currently using to get to work, run household errands, and get groceries and other household necessities.

23According to the appellant, the 2010 Honda needs front end mechanical work and is not as safe or reliable as the impounded vehicle for commuting purposes. The appellant estimates that repairs to that vehicle will cost approximately $1500 which is onerous when added to the other bills that have been generated by the incident that led to the impoundment.

24However, I note that the appellant’s evidence regarding the mechanical state of the second vehicle is derived from the opinion of the driver who apparently has some mechanical aptitude but is not a licenced mechanic. The appellant is currently using the vehicle and there is no convincing evidence that it is unsafe or incapable of meeting her essential transportation needs, at least for the duration of the impoundment. It appears that the appellant has a viable, although not ideal, alternate means of transportation and as a result I conclude that the impoundment will not result in “exceptional hardship” as that term is used in the Act and regulation.

(d) Summary

25The appellant has not demonstrated that she exercised due diligence in attempting to establish that the driver’s licence was not subject to an ignition interlock condition, or that the impoundment will cause exceptional hardship as that term is used in the Act and regulation.

ORDER

26Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.