Jeannette McGill v. Registrar of Motor Vehicles, 2024 CanLII 102095

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 that Act

Between:

Jeannette McGill

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Jeannette McGill

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: October 9, 2024

Overview

1Jeannette McGill (the “appellant”) appeals the 45-day impoundment of her 2013 Kia Sorento (the “vehicle”) on September 16, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by S.G. (the “driver”) on whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on September 20, 2024.

ISSUES

3The issues to be determined are:

1. 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.

2. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

4For the reasons set we below, I confirm the impoundment of the vehicle.

ANALYSIS

5The agent for the Registrar presented evidence that the appellant’s vehicle was stopped by police while it was being driven by a person, S.G., whose licence was suspended due to a prescribed Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.

Issue 1 - The appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).

6The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that she exercised due diligence in attempting to determine if S.G. had a valid driver’s licence.

7In the context of an appeal under s. 50.2(3)(c) of the Act, due diligence means taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances. Due diligence does not require perfection.

8Whether the ground of due diligence has been made out is highly fact-specific, and whether efforts are considered to be reasonable will depend on the circumstances.

9Examples of what reasonable actions might be in these circumstances can be found in the Tribunal’s decision in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT):

There is a range of actions for a vehicle owner to check the status of another person’s driver’s licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver’s licence, asking to see or examine a person’s driver’s licence, or using the Ministry’s telephone or online checking service and paying a small fee to verify the status. 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 she and the driver have been in a relationship for some time. When the relationship began, she was aware that his driver’s licence was suspended. However, on September 17, 2021, she drove him to a Service Ontario centre in order to have his Ontario Health Card renewed. She waited in her vehicle. When he returned to the vehicle, he informed her that they renewed his driver’s licence as well. The appellant testified that, at that time, he showed her the driver’s licence card, but after being informed by the respondent that, when renewing the driver’s licence, a paper is given initially and a card is mailed within a couple of weeks, the appellant advised that it may have been a paper that he showed her. She could not recall any of the contents of the paper. She later testified that it could have been a Driver Licence Change of Address Information sheet dated September 17, 2021, which she produced as evidence at the hearing.

11The appellant testified that she assumed that what she saw was a driver’s licence renewal, and, to the date of the impoundment, did not request again to see his licence, nor questioned him on the status of his licence. She also was unaware that she could check his licence on a Ministry of Transportation website.

12The Registrar submits that the appellant did not exercise due diligence as she failed to properly examine the paper that she was shown on September 17, 2021. Had she done so, she would have seen that it was not a valid driver’s licence renewal. She also took no steps thereafter (ie: requesting to view his driver’s licence or checking his licence status on the MTO website) in order to ensure that his driver’s licence was valid.

13I agree with the Registrar. In the very least, it is incumbent upon an appellant to have asked to see the driver’s licence of an individual who wishes the use of their vehicle. In this case the appellant trusted the driver but failed to properly review the document that he presented to her. Had she done that, she would have been aware that his licence, indeed, had not been renewed. This is particularly important as the appellant was aware that his licence was already suspended. Neither did she, at any time, request to view his driver’s licence after September 17, 2021.

14I therefore find that the appellant did not exercise due diligence.

Issue 2 - The impoundment will not result in exceptional hardship as that term is defined in the Act and the Regulation

15Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate the lack of an alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then the appeal will fail and I need not consider any other requirements of the test for exceptional hardship.

16If it is found there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle or that there would be an immediate, significant and long-lasting financial or economic loss to any person ordinarily transported by the vehicle.

17The appellant submits that the impoundment will result in exceptional hardship as she has no reasonable alternative to the vehicle.

18The respondent submits that the appellant does have access to reasonable alternatives to the vehicle, and therefore does not meet the threshold test for exceptional hardship.

19The appellant testified that she resides in Tottingham, Ontario with her adult son and adult niece. She is currently on the Ontario Disability Support Program and works part time as a health care professional, assisting 2 clients in their homes.

20The appellant listed medical conditions which require her to attend at medical appointments and to obtain prescription medications.

21The appellant testified that her son owns a 2005 Dodge Caravan which she has used to get to and from work. Her friends have also allowed her to use their vehicles. The appellant advised that she has used the Caravan to also obtain groceries, prescriptions and necessities when required. She has also used Uber on one occasion to a medical appointment, although continuing to use Uber is cost prohibitive.

22The appellant also has the responsibility to take her mother, who also lives in Tottingham, to medical appointments. During the impoundment, she has been able to have others transport her mother to those appointments.

23The appellant testified that public transit is not available in Tottingham. She does, though, have access to 911 services.

24The Registrar submits that the appellant has alternatives to the impounded vehicle. Although inconvenient, the appellant has access to her son’s vehicle as well as those of her friends, for transportation to and from work and in order to obtain the necessities of life. The appellant has not missed any work during the impoundment, nor has she (or her mother) missed any medical appointments. She also has access to 911 services.

25The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives, then the ground of exceptional hardship is not available as a ground of appeal. Further to the evidence provided, I find that the appellant has failed to discharge the threshold burden of establishing that there are no reasonable alternatives to the impounded vehicle.

26The appellant does have access to her son’s vehicle when needed, Also, while it is inconvenient, and, more than likely, uncomfortable, for the appellant to request assistance for transportation, that assistance is available to her. The appellant has not missed any work and is able to obtain her groceries and other necessities. Lastly, she does have access to 911 should that be required.

27The appellant has failed to satisfy the Tribunal on a balance of probabilities that she meets the test for exceptional hardship, as set out in the Regulation as she has reasonable alternatives available to her.

I ORDER AS FOLLOWS:

28For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.