An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Alyce Heary
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Alyce Heary
For the Respondent: Leila Pereira
Heard by teleconference: June 6, 2023
BACKROUND
1Alyce Heary (the “appellant”) appeals the 45-day impoundment of her 2021 Ram 1500 (the “vehicle”) under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on May 20, 2023. At the time of the impoundment, her husband, Douglas Heary, (“Mr. Heary”) was driving the vehicle while his licence was under suspension.
2The appellant appeals on the grounds that the impoundment will cause exceptional hardship and that of due diligence.
ISSUES
3In accordance with the Notice of Appeal, the issues to be determined are:
i. Whether 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 detained in order to be impounded was not then under suspension, under s. 50.2(3)(c) of the Act.
ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
RESULT
4For the reasons set out below, I allow the appeal and order the Registrar to release the vehicle.
EVIDENCE AND ANALYSIS
Issue 1 – Did the appellant exercise due diligence in accordance with [s. 50.2(3)(c)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)?
5I find that the appellant has not established on a balance of probabilities that she exercised due diligence.
6The Registrar referred to the Notice to Registrar, dated May 20, 2023, in which Douglas Heary is listed as the driver of the vehicle and the appellant and Mr. Heary as owners of the vehicle. The Notice to Registrar states the location of the incident as Victoria Street in the town of Shelburne, Ontario.
7The Registrar referred to the Extended Driver’s Record Search for Criminal Code Convictions of Mr. Heary, dated May 31, 2023. The Driver’s Record Search lists the driver’s licence status as Suspended, due to failure to complete remedial program subsequent to a conviction of driving with more than 80 mgs alcohol on March 13, 2007.
8Between the time of the aforementioned suspension imposed on March 13, 2008 and the impoundment of May 20, 2023, a number of events occurred with respect to Mr. Heary’s driver’s licence.
9Following the suspension of March 13, 2008, Mr. Heary allowed his driver’s licence to expire for over three years, necessitating him to reapply for a licence and to meet all the requirements of graduated licencing. He subsequently obtained his G2 Driver’s Licence in November 2018. He then obtained an Ontario Photo Card in March 2022 under his birth surname of Johnston. In April 2022, he obtained an official name change to Douglas Heary. Upon that occurring, Mr. Heary’s prior driver’s licence (with the record of suspension) and his Ontario Photo Card were ‘merged’ into the new driver’s licence. The Registrar testified that the new licence as well as separate correspondence indicating that the merged licence remained suspended, were mailed to Mr. Heary’s address in April 2022.
10Mr. Heary testified that, although he was aware of his earlier suspension, after receiving the new driver’s licence, he assumed that the suspension of the previous one had just “gone away”. He testified that he received the new driver’s licence by mail in April 2022, but did not receive the separate correspondence.
11The due diligence ground of appeal requires the appellant to establish on a balance of probabilities that she took reasonable steps in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was detained in order to be impounded was not then under suspension.
12Although Mr. Heary was aware of his previous suspension, he took no steps to inquire as to whether that suspension was still in effect. Rather, it was his testimony that he merely assumed that it was not.
13The appellant testified that she was also aware of Mr. Heary’s suspension of 2008. She also failed to take steps to ensure that the suspension was no longer in effect. As well, she testified that she does not recall receiving the separate correspondence in April 2022 advising that Mr. Heary’s driver’s licence was under suspension.
14I accept the testimony of the Registrar who advised that the letter advising of the remaining suspension on the driver’s licence was mailed concurrent to the new driver’s licence itself. Although the Registrar did not include that letter in their submissions, it is unlikely that the Registrar’s information regarding this letter is inaccurate.
Conclusion
15In summary, I conclude that the appellant knew or should have known that Mr. Heary’s driver’s licence remained under suspension, or, in the least, should have made efforts to ensure that it was not. Therefore, the evidence is insufficient to establish due diligence in the present circumstances.
Issue 2 – Will the impoundment of the vehicle result in exceptional hardship in accordance with [s. 50.2(3)(d)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)?
16I find that the appellant has established on a balance of probabilities that the impoundment will result in exceptional hardship.
Testimony of the appellant
17The appellant testified that she lives with her husband Mr. Heary and their son in the town of Shelburne, Ontario. There is no transit nor ride sharing services in Shelburne. There is only one taxi and its availability is unpredictable. Although there are two other vehicles registered to their household; a Jeep which they cannot afford to repair, and an Acura which is broken and is a “parts car”, they are unusable.
18The appellant is currently employed at a full-time job at Fast-Frate in Woodbridge, Ontario (Monday-Friday) as well as part time in Brampton (Thursdays from 6-9) and in Shelburne (Friday and Saturday evening). During the period of the impoundment of the vehicle, she has used up her vacation days at her full-time job at Fast-Frate, has been unable to get to work in Brampton, and is able to walk to work in Shelburne. At times she stays with friends in Brampton and takes public transit to Fast-Frate from there. She testified that she is sure that she will lose her full-time employment in Fast-Frate if she misses further work.
19The appellant testified that her husband also works three jobs: full time in Brampton at Armacell Canada, part time in Shelburne as well as another job not specified. He also stays with friends when available and takes transit to Armacell from there. Mr. Heary testified that he is “almost through his vacation” and will possibly lose his job should he miss more days of work.
20The appellant further testified that their son is a first-year mechanic apprentice employed at a garage in Mississauga. He has also missed some days from his employment.
21With respect to their ability to obtain groceries and personal items, the appellant is able to walk to and from a Giant Tiger store in Shelburne. Regarding their medical statuses, the appellant did not comment on any medical requirements of either herself or her son but did testify that her husband has had by-pass surgery seven years prior, is diabetic, has had one toe amputated and cannot attend his monthly appointment with his podiatrist in Brampton due to the impoundment of the vehicle. She testified that she is concerned that, should Mr. Heary contract infection in his foot due to his lack of attendance with his podiatrist, he may be in danger of losing another toe. Mr. Heary testified that he is unable to see his podiatrist while at work in Brampton as he could not get to the podiatrist’s office in time while taking transit to get there.
Analysis
22The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.
23In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that they have considered every reasonable option that could reduce or eliminate a threat or loss amounting to hardship. This includes using another vehicle and making arrangements to do without a vehicle.
24In determining whether a person has suffered exceptional hardship, the Tribunal cannot consider “inconvenience to any person” as a factor (see s. 10(2) and 10(3) of the Regulation). However, if there is no alternative to the impounded vehicle available, the economic loss will be immediate, significant and lasting, and such loss will impact a person other than the suspended driver and the impact of the loss will not be the result of a loss by the suspended driver, then the Tribunal may consider these factors.
25I found the testimony of both the appellant and her husband to be credible with respect to their employment. It is apparent from their testimony that they and their son are dependent upon rides from friends when available and boarding from friends when available to facilitate their employment in Woodbridge, Brampton and Mississauga. She and her husband are quite concerned that, with any further absences from work, they can lose their full-time employment.
26I am satisfied from their testimony that there is no reasonable alternative to the impounded vehicle that would be consistent enough to avoid an immediate, significant and long-lasting economic impact to the appellant through the feasible loss of her full-time employment in Woodbridge.
27While I am precluded from considering the same economic impact on Mr. Heary, as he was the driver of the vehicle, I am not precluded from considering the risk to the health and safety of Mr. Heary due to his inability to access his podiatrist using public transit. However, in this situation, it would be reasonable to expect that, if the medical requirement is pressing, Mr. Heary would be able to obtain accommodation from his employer to attend at his podiatrist’s office.
Conclusion
28Based upon the possible immediate, significant and long-lasting economic impact on the appellant, I find that the impoundment of the vehicle will result in exceptional hardship.
ORDER
29For the reasons set out above, I order the Registrar to release the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Jeffery Campbell, Vice-Chair
Released: June 26, 2023