An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Noel Reid
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Noel Reid
For the Respondent: Andrew Sookhoo
Heard by teleconference: September 25, 2023
BACKROUND
1Noel Reid (the “appellant”) appeals the 45-day impoundment of his 2017 GMC Canyon (the “vehicle”) under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on August 19, 2023. At the time of the impoundment his son, Vincent Rattanatray, (“the driver”) was driving the vehicle while his licence was under suspension.
ISSUES
2In accordance with the Notice of Appeal, the issues to be determined are:
i. Whether the owner of the motor vehicle 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 under suspension, under s. 50.2(3)(c) of the Act.
ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
RESULT
3For the reasons set out below, I confirm the impoundment of the vehicle.
EVIDENCE AND ANALYSIS
4The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped while being driven by a person whose licence was suspended due to a Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.
The appellant did not exercise due diligence in accordance with [s. 50.2(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth)(c) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
5I find that the appellant has not established on a balance of probabilities that he exercised due diligence.
6The appellant testified that he lives alone with his son, the driver, who owns and operates a roofing business in Owen Sound, Ontario. On the day of the impoundment the appellant loaned his vehicle to the driver.
7The appellant advised that he took his son for his driver’s test a number of years ago and is not sure when he last checked his son’s driver’s licence. He also testified that he was unaware that he could check the driver’s licence of the driver on an MTO website.
8The due diligence ground of appeal requires the appellant to establish on a balance of probabilities that he took reasonable steps in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was detained in order to be impounded was not then under suspension.
9It is apparent that the appellant did not put his mind to whether or not his son’s driver’s licence was valid on the day of impoundment. It is unknown when the appellant last checked for the validity of his son’s driver’s licence.
Conclusion
10In summary, I conclude that the appellant did not make any efforts to determine the validity of his son’s driver’s licence. The evidence is insufficient to establish due diligence in the present circumstances. I therefore conclude that the appellant did not exercise due diligence in attempting to determine that his son’s driver’s licence was not under suspension at the time the car was impounded. I dismiss this ground of appeal.
The impoundment of the vehicle will not result in exceptional hardship in accordance with [s. 50.2(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth)(d) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
11I find that the appellant has not established on a balance of probabilities that the impoundment will result in exceptional hardship.
Testimony of the appellant
12The appellant testified that he lives in Owen Sound, Ontario and is a member of the Canadian Armed Forces. He is posted at the 4th Canadian Division Training Centre in Meaford, Ontario, which is a 30-minute drive from his home. The appellant advised that he has missed two days at his posting. On the other days, his boss has driven him to and from his posting in Meaford.
13The appellant testified that he is able to walk to obtain groceries and necessities. With respect to medical appointments, he is unable to afford taxis for his one-per-week physiotherapy appointments, which are required to treat injuries sustained while stationed in Afghanistan. He has also re-scheduled one dental teeth cleaning appointment.
14The registrar presented a RIN Summary which discloses that four vehicles are registered to the appellant. The appellant advised that the 2006 Mercury has been sent to the auto-wreckers, while the 2005 GMC and 2007 GMC are still in use but are being utilized for his son’s roofing business. The last vehicle is the vehicle at issue.
Analysis
15The test for exceptional hardship is set out in Ontario Regulation 631/98 (the Regulation), under the Highway Traffic Act. In determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.
16In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner to demonstrate that they have considered every reasonable option that could reduce or eliminate a threat or loss amounting to hardship. This includes using another vehicle and making arrangements to do without a vehicle.
17In determining whether a person has suffered exceptional hardship, the Tribunal cannot consider “inconvenience to any person” as a factor (see s. 10(2) and 10(3) of the Regulation). However, if there is no alternative to the impounded vehicle available, the Tribunal may consider whether the impoundment of the vehicle will result in the risk to the health or safety of a person normally transported by the vehicle and/or whether the impoundment will result in the immediate, significant and lasting economic loss to a person normally transported by the vehicle.
18I found the testimony of the appellant honest and forthright. However, I am not satisfied from his testimony that there is no reasonable alternative to the impounded vehicle.
19The appellant has obtained transportation to and from work. Of the 25 working days since the impoundment (as of the date of the hearing) he has missed only two. With respect to medical appointments, although he has missed his dental and his physiotherapy appointments, taxi services are available for this purpose. The appellant is also within walking distance to obtain groceries and necessities of life.
20As well, the appellant has the availability of his 2005 and 2007 GMC vehicles but chooses to allow them to be utilized instead for the driver’s roofing business.
Conclusion
21Based upon the appellant’s testimony, I conclude that the appellant has failed to demonstrate that there are no reasonable alternatives to the impounded vehicle. Finding that, I cannot consider whether the impoundment of the vehicle will result in the risk to the health or safety of a person normally transported by the vehicle, nor whether the impoundment of the vehicle will result in the immediate, significant and lasting economic or financial loss of a person normally transported by the vehicle. The appeal on this ground must therefore be dismissed.
ORDER
22For the reasons set out above, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Jeffery Campbell
Vice-Chair
Released: September 26, 2023