Licence Appeal Tribunal File Number: 15222/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:

Priyanka and Dharav Patel

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Priyanka Patel, Appellant

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

September 26, 2023

OVERVIEW

1Priyanka Patel (the "appellant") appeals the impoundment of her 2020 BMW 330i on September 4, 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 spouse was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

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

ISSUES

3The issue in dispute is:

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 her husband 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 appellant's vehicle was impounded pursuant to s. 55.1(1)1 of the HTA, because her spouse was driving the vehicle while his licence was suspended.

6The respondent presented evidence that the spouse'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.

7The 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"), allowing the appeal and that the Registrar release the vehicle.

8A 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 spouse's licence was not under suspension at the time her vehicle was detained.

9To succeed on this ground of appeal, the appellant must show that she took reasonable steps to determine that her husband's driver's licence was not suspended prior to allowing him to drive the vehicle. 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 licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

10The appellant testified that neither she nor her husband were aware that his licence was suspended prior to the impoundment because a probation order dated July 25, 2023, only stated that he was prohibited from driving with a blood alcohol level above zero milligrams of alcohol in 100 milliliters of blood and complete a driving remedial program. In addition, she submits that they did not receive the notice of suspension from the Ministry of Transportation until September 5, 2023, which was the day after the impoundment. She submitted a Canada Post tracking sheet in support of same. As a result, they were unaware that his licence had been suspended. Finally, the reason for the suspension was incorrectly listed on the Ministry's database as "driving while impaired" which was later amended to "dangerous driving" when the police impounded the vehicle. Therefore, the police impounded the vehicle for the wrong reason.

11The 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. This is consistent with the wording of the HTA.

12I find the appellant to be a credible witness and believe that she was not aware that her husband's licence was suspended on the date the vehicle was impounded. However, I find in this case that the appellant made assumptions that her husband's licence was not suspended at the time because of the information in the probation order. Although the appellant and her husband received the notice of suspension after the impoundment, I find that they should have taken steps to confirm the status of his licence because he had recently pleaded guilty to dangerous driving, which is a Criminal Code offence. Further, the probation order makes it clear that there were conditions on his licence. I find it would have been a practical first step to follow up with the Ministry of Transportation to confirm the status of his licence before he drove the vehicle.

13Finally, I agree with the respondent that the fact that the reason for the suspension was later amended from impaired to dangerous driving is irrelevant because this offence would also result in a suspension and impoundment of the vehicle. As highlighted above, the test to prove due diligence requires an owner of a vehicle to take steps to determine the status of the licence is valid. I find that the appellant has failed to demonstrate that she used due diligence in determining that her husband had a valid licence.

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

14Section 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.

15Subsection 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 making arrangements to manage without any motor vehicle during the impound period.

16Only 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.

17The appellant testified that the impounded vehicle is the only vehicle her and her husband own, and she relies on it to get to and from work and to take her two and half year-old child to daycare. The appellant lives in Etobicoke and has access to public transit, which is a five-minute walk from her house, but it poses a health risk to her daughter who has not been vaccinated. She submits that there has been a resurgence of Covid-19, and as a result, public transportation is a risk to her daughter's health. Likewise, taxis and ride sharing programs such as Uber are available, but they also pose a health and safety risk because of the multiple riders. It is also too expensive. She has looked into renting a car during the impound period but the vehicles available to her are limited because she only has a G2 licence which makes renting a vehicle more expensive. Finally, they do not have any immediate friends and family members nearby who can assist with transportation.

18During cross-examination, the appellant conceded that she has missed five days of work since the impoundment because her daughter has been ill. However, since the impoundment she has been getting to work by using public transit and Uber. Her husband gets a ride to and from work by a colleague. Further, she has ordered groceries online and has picked up groceries using public transit. The family has not missed any medical appointments since the impoundment, and she has discussed her daughter's health issues with the family doctor over the phone. Moreover, she has access to emergency services and can contact 911 in the event of an emergency.

19Although the impoundment of the appellant's vehicle has caused stress, inconvenience, and has had financial consequences, I find that she has alternatives to the impounded vehicle because she has access to other means of transportation such as the use of public transit and Uber. Despite the fact that public transit is inconvenient, this is an alternative means of transportation. Finally, although the appellant is hesitant to take public transit because of Covid 19 and her daughter's vaccination status, she has taken public transit since the impoundment. In addition, I find she has access to renting a vehicle during the impound period to mitigate the health and safety risk to her child in taking public transit.

20Since 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.

21I am not satisfied that, the appellant has proven, on a balance of probabilities, that she is without alternatives to the impounded vehicle.

CONCLUSION

22I 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

23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.