Licence Appeal Tribunal File Number: 14940/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Mark Mandich
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Rupinder Hans
APPEARANCES:
For the Appellant: Mark Mandich
For the Respondent: Andrew Sookhoo, Representative
Heard by Teleconference: June 12, 2023
OVERVIEW
1The appellant, Mark Mandich, appeals from the 45-day impoundment of a 2003 Honda motor vehicle (the "vehicle") under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on May 27, 2023. At the time of the impoundment, his daughter Genna Anne Chmara was driving the vehicle without an interlock device contrary to a condition on her licence.
2The appellant appeals on the grounds that he exercised due diligence in attempting to determine that Ms. Chmara's driver's licence was not then subject to a condition that she only drive vehicles equipped with an interlock system, and that the impoundment will cause exceptional hardship.
ISSUES
3The issues in dispute are:
i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.
ii. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
RESULT
4I find the appellant has not established that he exercised due diligence in accordance with section 50.2(3)(c) of the Act, or that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.
ANALYSIS
Whether the appellant exercised due diligence in accordance with the Act
5The burden is on the appellant to prove on a balance of probabilities that he exercised due diligence in attempting to determine that the driver's licence of his daughter was not subject to a condition that she only drive vehicles equipped with an interlock system. I find that the appellant has not met his burden.
6This ground of appeal requires the vehicle owner to show on a balance of probabilities that he took reasonable steps to determine that the driver's licence was not subject to an interlock condition at the time the vehicle was detained in order to be impounded. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm that the licence was not subject to an interlock condition. The specific steps that amount to due diligence depend on the circumstances of each case.
7The appellant testified that he was aware his daughter, Ms. Chmara, had been charged with an impaired driving offence about three years ago. He testified that she told him that she had gotten her licence back and he relied upon her assertion. He was confident that she was able to drive his vehicle and that there were no restrictions/conditions on her licence. He believes that he had seen her licence awhile ago and had not seen any conditions on it. He just saw that it was a newly issued licence.
8The appellant testified that he did not think it was reasonable for a lender of a vehicle to inspect a borrower's driver's licence and to check for conditions.
9The appellant's daughter, Ms. Chmara, who was driving the vehicle at the time of impoundment, testified that she was unaware that her driver's licence was subject to an interlock condition. She testified that she completed the Back on Track program and waited out the 18 months. She acknowledged receiving a letter stating that the interlock condition was commencing on January 9, 2023, but she was confused and did not realize she was subject to the ignition interlock condition.
10The respondent provided Ms. Chmara's Extended Driver's Record Search for Criminal Code Convictions which clearly notes mandatory ignition interlock required starting from January 9, 2023 to January 9, 2024. The respondent testified that Ms. Chmara was subject to a mandatory ignition interlock condition commencing on January 9, 2023, after her suspension for a medical condition ended. The respondent points out that Ms. Chmara should have known that she was subject to the interlock condition as she had received correspondence indicating such and her driver's licence condition section stated "I" for interlock.
11The respondent also provided email correspondence, dated January 17, 2023, between Ms. Chmara and the Ministry of Transportation in which Ms. Chmara acknowledges receiving correspondence, dated January 9, 2023, from the Ministry stating that she "must have a vehicle with interlock to drive. . ." Further email correspondence from the Ministry to her, dated January 21, 2023, states that the ignition interlock is a mandatory requirement under the Highway Traffic Act for driver's convicted of drinking and driving.
12I note that this ground of appeal requires the vehicle owner to show that he took reasonable steps to determine that his daughter's licence was not subject to the interlock condition at the time the vehicle was detained in order to be impounded. While Ms. Chmara may have been confused as to whether she was subject to an interlock condition, my analysis must focus on the appellant and the steps he undertook to determine that her licence was not subject to that condition.
13Given the evidence before the Tribunal, I find that the appellant did not exercise due diligence under the Act to determine that his daughter's driver's licence was not subject to an interlock condition at the time the vehicle was detained in order to be impounded. As noted above, due diligence requires more than making assumptions of fact which I find is what the appellant did. The appellant believed that the Criminal Code charges against his daughter had been resolved and that she was permitted to drive. He believes, at some point, he saw her with a newly issued driver's licence and he relied upon that.
14I find that he did not undertake reasonable steps to determine that her driver's licence was not subject to an interlock condition at the time the vehicle was detained in order to be impounded. I note that he was fully aware of his daughter's Criminal Code conviction, and thus, should have taken steps to ensure that her licence was not subject to the condition. He did not check for any conditions/restrictions on her driver's licence and testified that he did not think it was reasonable for him to do so. I find that had the appellant properly inspected his daughter's driver's licence he would have noticed that she was subject to condition "I" for interlock. The appellant also could have undertaken an internet search or made a phone call to the Ministry to investigate his daughter's driver's licence. Instead, he relied upon his daughter's and his own mistaken belief that her licence was not subject to the interlock condition.
15In my view, due diligence required the appellant to do more then he did and I find that he did not take reasonable steps.
16The appellant has not met his burden.
Whether the impoundment will result in exceptional hardship
17The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find that the appellant has not met his burden.
18Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
19Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
20If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.
21If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3) of the Regulation, if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
22The appellant testified that he has three vehicles in his household, including the impounded Honda. Aside from the impounded vehicle, the two other vehicles are a 2021 Lincoln Nautilus, which is his primary vehicle, and a 2017 Mercedes 250, which is his wife's primary vehicle. The appellant testified that there are 4 adults residing in his home, including his wife, his son and his son's partner, and currently two available vehicles. The appellant testified that not having a third vehicle available has been difficult as his children, at times, need a vehicle.
23The appellant testified that he also has a young disabled granddaughter and his daughter, Ms. Chmara, sometimes borrows the car to take his granddaughter to medical appointments. He is more than happy to lend a vehicle to his children.
24The appellant testified that he recently retired and thus does not need a vehicle to commute to work. His wife works at the University of Western Ontario and does physically attend work. She would normally drive one of the available vehicles to work. He does not know if she has missed any days from work. Since the impoundment, she has been carpooling with people, riding a bike, and using Ubers to get to work. He testified that she also drives her own car if it is at home, meaning that none of their children are using it.
25The appellant testified that he has not missed any medical appointments but has rescheduled some. He is more concerned about taking his granddaughter to her medical appointments. He testified that she has not missed any medical appointments but has had to reschedule some. He helps out with driving his granddaughter to appointments when needed. He testified that her father can also drive her to appointments if he is not working.
26The appellant testified that he has been using Instacart for groceries. He testified that he probably would have rented a car had he known that it would take this long to get back his vehicle.
27The appellant's daughter, Ms. Chmara, testified that her household includes her husband and her two minor children and that, at times, she uses her father's vehicle to take her daughter to medical appointments. She testified that her husband also has a vehicle. She testified that sometimes they use her husband's vehicle or trains to travel to Toronto for her daughter's medical appointments. They have an appointment in the near future and will be using an Uber to get to the appointment.
28The appellant's daughter also testified that since the impoundment they have been getting their groceries from the corner store and have asked others to pick food up for them. Her parents have been assisting and taking her to medical appointments. She has used an Uber once to attend her own medical appointment. She testified that her husband works shift work so sometimes his car is not available or he is not available to drive.
29The Registrar takes the position that there are several alternative vehicles available to the appellant, including a 2021 Lincoln Nautilus and a 2017 Mercedes 250. I note that the appellant acknowledged that there were two additional vehicles in the household that are available.
30I find the evidence before the Tribunal establishes that there are two alternative vehicles available in the household, a 2021 Lincoln and a 2017 Mercedes. These are the primary vehicles for the appellant and his wife. The appellant testified that not having a third car available has been difficult and inconvenient for him and his family. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
31I further find that the evidence establishes that, since the impoundment, the appellant and his family members have used the two alternative vehicles, public transportation, Uber, carpooling, and a bike to complete their daily tasks. Ms. Chmara's husband also has a vehicle that can be used to take their daughter to her medical appointments. There have been few, if any, missed doctor's appointments or work engagements. While carpooling and Uber may not be convenient or cost effective, nonetheless, I find these alternative forms of transportation have been used.
32Under the circumstances, I find the appellant has not proven that there is no alternative to the impounded vehicle available and the appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.
33Although the impoundment has resulted in inconvenience and expense, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.
ORDER
34On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant's vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
__________________________
Rupinder Hans
Adjudicator
Released: June 28, 2023