Licence Appeal Tribunal File Number: 15197/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:

Amy Petrie

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Amy Petrie, Appellant

For the Respondent: Andrew Sookhoo, Agent for the Registrar

Heard by Teleconference: September 18, 2023

OVERVIEW

1Amy Petrie (the “appellant”) appeals the impoundment of her 2017 Buick Encore on August 23, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, her friend was driving the vehicle while their driving privileges were under suspension.

2The appellant appeals on the grounds that she exercised due diligence in attempting to determine that her friend’s driver’s licence was not suspended at the time it was detained, and that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

1. Did the appellant exercise due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained was not then under suspension under section 50.2(3)(c) of the HTA?

2. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the appellant has not established that she exercised due diligence in attempting to determine that the driver had a valid licence prior to the impoundment under section 50.2(3)(c) of the HTA. Further, she has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the HTA. As a result, I confirm the impoundment.

ANALYSIS

5The respondent presented unrefuted evidence that the friend’s licence was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

6The 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.

7A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s.50.2(3)(c) and (d) as noted above.

The appellant did not exercise due diligence in determining that her friend’s licence was not under suspension at the time her vehicle was detained.

8To succeed on this ground of appeal, the appellant must show that they took reasonable steps to determine that the driver’s licence was not suspended. 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 their friend’s licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

9The appellant testified that she was not aware that her friend’s licence was under suspension prior to lending them her vehicle. She was trying to help out a friend who was going through a difficult time. Prior to the impoundment, the appellant did not look at her friend’s driver’s licence. She testified that she had previously seen them drive a car and had viewed their driver’s licence within the last year which looked like a regular driver’s licence. Further, when she asked them why they were not driving regularly, the friend advised her that their car had died. Consequently, she had no reason to believe that their licence was under suspension.

10The Tribunal has considered different various steps an owner can take to determine whether they have exercised due diligence. Such steps may include, asking to see the driver's licence before allowing them to drive and doing a search on the Ministry of Transportation’s website. The steps necessary to establish due diligence may be different depending on the circumstances of each case, but the appellant must always establish that they took active steps, as opposed to making assumptions. The Tribunal has also consistently held that the owner’s obligation is to exercise due diligence at or near the time the vehicle is detained [emphasis mine]. This is consistent with the wording of the HTA.

11I find in this case the appellant had an obligation to ask her friend to show her their licence prior to letting them drive her vehicle in short proximity to the time it was detained. This was not done in the present case. Although I find that it is unfortunate that the friend was dishonest with the appellant about the status of their licence, I find that the appellant made assumptions that their licence was valid which as noted above is not enough to satisfy the burden of proof for the due diligence test.

The impoundment of the vehicle will not result in exceptional hardship.

12Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the HTA. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

13Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option such as using another vehicle and planning to manage without any motor vehicle during the impound period.

14Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle during the impoundment period.

15The appellant testified that she needs her vehicle back because she cannot afford the impoundment fees or the cost of taking buses, taxis and Uber. Further, she does not own or have access to another vehicle. She cannot obtain a rental vehicle because she does not have a credit card and it is unaffordable. She is currently going through a difficult time in life as she is in the middle of a separation with her children’s father. She is a single mother of three children, a 15-year-old girl and two boys with special needs aged 10 and 13. Both boys have autism and are developmentally delayed. She shares custody of the boys with her ex-husband. During the impoundment, one of her sons missed an important doctor’s appointment. Moreover, she has been unable to receive respite care for the boys because she has no means of getting them to and from the caregiver’s location. She also relies on the impounded vehicle to exchange children with her ex-husband. Finally, she has been unable to visit her mom who has health issues and lives an hour and a half away.

16During cross-examination, the applicant conceded that since the impoundment she has gotten around by taxi and has received assistance from a friend and neighbour. Her neighbour has been driving her to and from work, so she has not missed any time off work. Further, her ex-husband has taken her son to his medical appointments, however she would like to be there to get feedback from the doctor about his health status. She has been ordering groceries online and having them delivered. Moreover, she has access to emergency services.

17I find the appellant to be a credible witness and believe that the impoundment has had a very negative impact on her life during what is already a difficult time. However, I find that she has not established that there is no alternative to the impounded vehicle because she has received help from friends and neighbours to get to and from work, has received support from her son’s father to get to medical appointments and has been able to obtain necessities through online grocery delivery. Since there are alternative means of transportation available to the appellant during the impound period, I need not take into consideration the other criteria in the Regulation that define the exceptional hardship test such as financial loss or health and safety issues.

18I find the appellant has not proven the impoundment will result in exceptional hardship under the provisions of s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

19Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.