Licence Appeal Tribunal File Number: 15113/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 pursuant to Section 55.1 of the Act.

Between:

Majid Aslfallah

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Majid Aslfallah, appellant (self-represented)

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

August 16, 2023

OVERVIEW

1Majid Aslfallah (the “appellant”) appeals the impoundment of his 2022 Ford Explorer on July 19, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that he satisfies at least one of the five grounds set out in s. 50.2(3) of the HTA. The appellant appeals on the grounds he exercised due diligence in attempting to determine the driver of the car had a valid licence (s. 50.2(3)(c)), and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

i. Did the appellant exercise due diligence in attempting to determine if the driver’s licence was valid and not under suspension?

ii. Will the impoundment result in exceptional hardship?

RESULT

5I find that the appellant has not demonstrated that he exercised due diligence to determine if the driver’s licence was valid and not under suspension, nor has he demonstrated that the impoundment will result in exceptional hardship. Therefore, the impoundment is confirmed.

ANALYSIS

Circumstances leading to the impoundment

6Under s. 55.1 of the HTA, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7At the time the appellant’s vehicle was detained, it was being driven by the appellant’s son. The respondent presented unrefuted evidence that the son’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the HTA at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Issue 1: Due Diligence

8I find that the appellant did not take reasonable steps to determine that his son’s licence was not under suspension.

9The test to meet for establishing due diligence in the circumstances, is whether an appellant took reasonable care to determine if a driver’s licence was valid, and not then under suspension. To prove due diligence in this matter, the appellant must establish that he took reasonable care or steps to ensure that his son had a valid licence when he allowed him to drive the vehicle. The Tribunal has previously held that these steps or actions could include examining the driver’s licence card or document, viewing Ministry of Transportation Ontario (“MTO”) documents that pertain to the driver’s licence status, inquiring of the MTO online or at Service Ontario as to the driver’s licence status, or discussing the licence status in conversation with the driver. It could also include independently researching the process of driver licence reinstatement after a suspension for a Criminal Code offence. These various steps or actions is not an exhaustive list. However, the Tribunal has found in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT), that the level of inquiry and action required will depend on the nature of the relationship between the owner and the driver, as well as on the situation – for example, whether there was an indication that the driver had a past history of licence suspensions.

10The appellant testified that he was aware of his son’s suspended licence from September 2021 onward but that he was under the impression that the suspension expired in September 2022. His son showed him an electronic court document that referred to a court fine of $1,000.00 and a term of suspension running to September 2022. The appellant took steps to prevent his son from driving the family vehicles in the year following September 2021 then, after viewing the court document and receiving verbal assurances, permitted his son to drive his vehicles after September 2022. The appellant submits that on this basis, he took all reasonable care in the circumstances.

11The respondent submitted that the appellant did not properly investigate the status of his son’s licence and fails to meet the due diligence test.

12I agree with the respondent. Although the appellant was attentive to preventing his son’s driving between September 2021 and September 2022, he did not lend equal attention to learning about his son’s licence status from its issuer, the MTO, after his son told him it had been reinstated. For example, he raised no question to his son regarding documents or documentation from the MTO that might confirm his licence was reinstated. The appellant was satisfied by an electronic document from the court but undertook no inquiries, questions, or investigations to the institution that oversees the suspension and reinstatement of licences, the MTO.

13I find the appellant did not take reasonable care or steps to investigate whether his son’s licence was reinstated. He therefore failed to establish that he exercised due diligence in the circumstances by attempting to determine if the driver’s licence was valid and not under suspension at the time the vehicle was impounded.

Issue 2: Exceptional Hardship

14I find that the impoundment will not result in exceptional hardship.

15O. Reg. 631/98 (the “Regulation”) sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship. Section 10(1) of the Regulation requires the Tribunal to first consider whether there are alternatives to the impounded vehicle. Only if there is no alternative to the impounded vehicle may I consider other consequences of the impoundment, such as financial or economic loss, in determining whether the exceptional hardship test has been met. Section 10(4) of the Regulation requires the owner of the impounded vehicle to demonstrate that there is no alternative.

The appellant has alternatives

16I find the appellant has alternatives to the impounded vehicle and therefore fails to meet the threshold of exceptional hardship defined in the Regulation.

17The appellant testified that as a construction labourer, he needs his vehicle for work, at least five days per week, and sometimes up to 7 days per week. His work sites vary daily between several locations in and around the GTA and Hamilton/Burlington. He needs a vehicle for tools to support his work. The family has two vehicles, the impounded 2022 Ford Explorer, and a 2023 Ford pick-up truck. Since the impoundment, and when the appellant is using their only remaining vehicle, the pick-up truck, his wife is left without a vehicle to attend her work, 3 to 5 days per week, get her mother, who lives with the family, to bi-weekly medical appointments, and transport their teenage daughter to and from summer school, 4 days per week.

18Since the impoundment, the family has been using Uber, and one or the other parent has missed work to provide transportation and assistance for the appellant’s mother-in-law’s medical appointments and to transport their daughter to from school. The appellant testified that he has missed over 5 days of work and his wife has missed 4 to 5 days of work, because of the impoundment. The appellant testified that his wife’s work might be in jeopardy if she is unable to complete shifts at her workplace.

19The appellant has looked into alternatives. He inquired into a rental car but declared it was unaffordable for the family. He testified that their financial ability is currently strained to the maximum.

20The nearest transit stop from the appellant’s home in Aurora is on Yonge St., approximately 2.0 km away. He testified that transit is not practical or convenient for the family and unsafe for their teenage daughter to use to get to school. The summer school does not provide bus service. The daughter’s school is 10 to 15 minutes drive from home. The appellant’s spouse’s work is a 12-minute drive from home.

21The appellant testified that the closest relatives live 45 minutes drive away in North York and are too far to consider seeking help for transportation needs during the impoundment.

22The appellant’s son lives with the family at home and has been helped in his transportation needs by his girlfriend, who drives and has access to a vehicle, using a bicycle, and using public transit. The appellant testified that he does not consider seeking help for the family’s transportation needs from his son’s girlfriend as she lives too far away from their home.

23The appellant indicated that missing work to keep one vehicle at home, and Uber, were their only suitable alternatives to the impounded vehicle.

24The respondent submitted that the appellant has made accommodations with work and used Uber as alternatives to the impoundment. The family has been able to meet medical appointments or reschedule them, and the daughter has not missed any school. It submits that the appellant has alternatives and therefore does not meet the test for exceptional hardship defined in the Regulation.

25I find the appellant has alternatives to the impounded vehicle. Although public transit can be impractical and inconvenient, it is available for the family to access work and school, and it is economical. The appellant and family reside in an urban area where “for hire” services such as Uber or taxi are readily available for medical appointments, to get to and from work, or to and from summer school. The appellant testified they are using Uber for some of their needs, despite its additional expense. As discussed above, only if the appellant is without alternatives may I consider financial or economic loss caused by the impoundment.

26In considering the criteria for exceptional hardship set out in of s. 10(1) of the Regulation, I find the appellant has reasonable alternatives. I therefore find the impoundment will not result in exceptional hardship.

CONCLUSION

27I find the appellant did not meet his burden to prove that he exercised due diligence in attempting to determine if the driver’s licence was valid and not under suspension, in relation to s. 50.2(3)(c), and has not proven the impoundment will result in exceptional hardship in accordance with s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

28Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle.

Bruce Stanton

Adjudicator