Licence Appeal Tribunal File Number: 15048/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Sunshine Cantin

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Sunshine Cantin

For the Respondent: Leila Pereira, Representative

HEARD: August 3, 2023

OVERVIEW

1The appellant, Sunshine, appeals from the 45-day impoundment of a 2014 Volkswagen Jetta 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 July 8, 2023. At the time of the impoundment, her ex-partner John David Johnson was driving the vehicle while his licence was suspended.

2The appellant appeals on the grounds that she exercised due diligence in attempting to determine that Mr. Johnson's driver's licence was not under suspension, 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 she 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

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2014 Volkswagen Jetta (the "vehicle");

ii. on July 8, 2023, the police discovered the impounded vehicle being driven by John David Johnson (the "driver"); and

iii. Mr. Johnson's licence was under suspension for a Criminal Code conviction at the time it was impounded.

Whether the appellant exercised due diligence in accordance with the Act

6The burden is on the appellant to prove on a balance of probabilities that she exercised due diligence in attempting to determine that the driver's licence of the driver was not suspended. I find that the appellant has not met her burden.

7This ground of appeal requires the vehicle owner to show on a balance of probabilities that she took reasonable steps to determine that the driver's licence was not suspended 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 specific steps to be taken by the owner to confirm that the licence was not suspended. The specific steps that amount to due diligence depend on the circumstances of each case.

8I find the appellant did not take any steps to confirm that the driver's licence of the driver was not suspended at the time the vehicle was detained in order to be impounded.

9I note that the appellant testified that she was aware that Mr. Johnson's driver's licence was suspended. The appellant acknowledges that the driver told her, at some point, that he did not have a valid driver's licence but that he would be getting his driver's licence back at the end of June 2023 or early July 2023. She testified that she did not see any documentation to reflect such, and instead, believed what he told her. She based her belief on the trust that she had in the driver.

10The appellant testified that when she allowed the driver to drive the vehicle, on July 8, 2023, she did not ask him if she could physically view his driver's licence. She did not ask him for any proof that his licence had been reinstated. She did not make any inquiries of the driver to ascertain whether he had a valid driver's licence at the time she permitted him to drive the vehicle. She further did not make any inquires of the Ministry of Transportation website to check the driver's licence status. Instead, she assumed that he had gotten his licence back.

11The appellant acknowledges that she should have asked the driver to provide proof that he had a valid driver's licence, but she did not. She testified that she did not even think to ask him if he had gotten his licence back. She testified that she believed that he had gotten his licence back at the end of June 2023 or early July 2023.

12In the circumstances, I find the appellant made an assumption that the driver had a valid driver's licence without taking any steps to confirm. I find that the appellant was fully aware that Mr. Johnson's driver's licence was suspended, at some point, and that she should have undertaken reasonable steps to determine if the licence was reinstated. The appellant could have asked to view the driver's licence, but she did not. She could have made inquires of Mr. Johnson, but she did not. She could have undertaken an internet search or made a phone call to the Ministry to investigate Mr. Johnson's driver's licence status.

13I note that this ground of appeal requires the vehicle owner to exercise due diligence by showing that she took reasonable steps to determine that the driver's licence of the driver was not suspended at the time the vehicle was detained in order to be impounded. In my view, due diligence required the appellant to do more than she did and I find that she did not take any reasonable steps. The appellant has not met her burden.

14Given the evidence before the Tribunal, I find that the appellant did not exercise due diligence under the Act to determine that Mr. Johnson's driver's licence was not suspended at the time the vehicle was detained in order to be impounded.

Whether the impoundment will result in exceptional hardship

15The 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 her burden.

16Section 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.

17Subsection 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.

18If 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.

19If 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.

20I find the appellant has alternative means of transportation available to her. The appellant testified that since the impoundment, she has used the driver's own vehicle and her neighbour's vehicle. Additionally, the appellant's adult daughter has also told her that she can borrow her car at night.

21The appellant testified that she has used her neighbours' vehicle, on two to three occasions, to go grocery shopping and in her pursuit of a new rental apartment.

22The appellant further testified that she has used the driver's own vehicle, a 2021 Chevy, on two occasions. I note the RIN Summary confirms that the driver owns a 2021 Chevy vehicle. The appellant testified that she used the driver's vehicle to attend a therapy session and, on another occasion, to get her blood work done. She states that it is not her preference to use his vehicle.

23She testified that she could walk to the grocery store if the need arises.

24The appellant testified that not having the vehicle available has been difficult, particularly as she is packing up her household belongings and anticipating a move. I note that the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

25I find the evidence before the Tribunal establishes that there are alternative means of transportation available to the appellant. I find that the evidence establishes that, since the impoundment the appellant has used the driver's vehicle and her neighbours' vehicle to complete her essential tasks. While borrowing another person's vehicle may not be convenient, nonetheless, I find these alternative forms of transportation have been used.

26Under 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.

27Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and the appeal must fail.

ORDER

28On 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.