Licence Appeal Tribunal File Number: 15050/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:

Cynthia Bickle

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR: Colin Osterberg

APPEARANCES:

For the Appellant: Cynthia Bickle, Self-represented

For the Respondent: Leila Pereira, Representative

HEARD: July 24, 2023

OVERVIEW

1Cynthia Bickle (the “appellant”) appeals the impoundment of her motor 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 June 30, 2023. At the time of the impoundment, Ryan Lyman was driving the vehicle in contravention of a condition imposed on his driver’s licence which required that it be equipped with an ignition interlock device. The appellant’s vehicle is not equipped with such a device. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds 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 subject to a condition that he only drive vehicles equipped with an ignition interlock device and on the ground that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

1. whether the appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act; and

2. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ANALYSIS

The appellant has not established due diligence according to the Act

5This ground of appeal requires the vehicle owner to show that she took reasonable steps to determine that the driver’s licence was not suspended, and that it was not subject to a condition requiring the driver to only drive vehicles equipped with an ignition interlock device. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver’s assertion that his licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

6The appellant was aware that Mr. Lyman’s licence was suspended for driving while intoxicated. She says that when his suspension was over, she went with him to a Service Ontario office and that his licence was reinstated. She did not go into the Service Ontario office with Mr. Lyman but waited in the car. When he returned, Mr. Lyman showed her his licence and she did not notice that it was subject to a condition requiring the installation of an ignition interlock device in order for Mr. Lyman to drive.

7The appellant says that she was not informed about the requirement for an interlock device and made no inquiries of the Ministry of Transportation with respect to that. Mr. Lyman never told the appellant about the condition and she believes he was unaware of it as well. Mr. Lyman did not testify at the hearing.

8Due diligence required that the appellant do more than she did to ensure Mr. Lyman had a licence which allowed him to legally drive her vehicle before allowing him to do so. She should have looked at Mr. Lyman’s licence more closely than she did, and she should have contacted the Ministry of Transportation to find out whether he was legally allowed to drive. Had she done

either of those things, she would have been made aware that the condition was attached to the licence.

9I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that Mr. Lyman’s licence was not subject to a condition requiring the driver to only drive vehicles equipped with an ignition interlock device before allowing him to drive the vehicle. I find that she has failed to establish the ground for appeal under s. 50.2(3)(c) of the Act.

The appellant has not established exceptional hardship according to the Act

10I find that the appellant has not established that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must be dismissed as a result.

11Section 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.

12Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Section 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.

13If 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 be dismissed.

14If 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), 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.

15The appellant lives in a rural area of New Brunswick with her 8-year-old son. She works full time from home primarily. The appellant says that she needs the vehicle to travel for work next week and that it will be expensive to rent a vehicle for that purpose. It is also expensive to hire a taxi to get supplies for her home since she is about 15 minutes from the nearest town. The appellant has no other vehicles and does not know anyone in the immediate area since she has just moved there.

16The appellant has not missed any time from work since the impoundment. She does not allege that the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle. She says that she has been able to get supplies for her home by taking taxis, although that is expensive. If the vehicle is not released, the vehicle intends to rent a vehicle in order to travel for work when required. Again, that will be expensive.

17The appellant did not allege that she was unable to pay the costs associated with renting a vehicle or using taxis when necessary, only that those costs will be very high. I find that the appellant has not proven that there are no alternatives to the impounded vehicle, only that they are expensive and inconvenient. As a result, her appeal under s. 50.2(3)(d) of the Act must fail. Although the impoundment

has resulted in inconvenience and expense, the appellant has failed to prove exceptional hardship under the Act.

ORDER

18For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.