Serena Orok v. Registrar of Motor Vehicles, 2024 CanLII 10558

Licence Appeal Tribunal File Number: 15539/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:

Serena Orok

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Serena Orok, Appellant

For the Respondent: Sadia Ashraf, Agent for the Registrar

Heard by Teleconference: January 19, 2024

OVERVIEW

1Serena Orok (the “appellant”) appeals the impoundment of her 2015 Dodge Ram on January 4, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). At the time of the impoundment, one of her employees was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) allowing the appeal and that the Registrar release the vehicle.

3A 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 sections 50.2(3)(c) and (d), namely that she exercised due diligence in determining that the employee’s driver’s licence was not suspended at the time the vehicle was detained to be impounded, and that the impoundment will result in exceptional hardship.

ISSUES

4I have been asked to decide:

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 Act?

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

RESULT

5I find the appellant has not established that she exercised due diligence in attempting to determine that the employee had a valid licence prior to the impoundment under section 50.2(3)(c) of the Act. Further, she has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ANALYSIS

The appellant did not exercise due diligence in attempting to determine that the employee had a valid licence prior to the impoundment.

6To succeed on this ground of appeal, the appellant must show that she took reasonable steps to determine that the employee’s driver’s licence was not suspended prior to allowing him to drive the vehicle. Due diligence does not require perfection. In this context, due diligence requires more than making assumptions of the facts. The Tribunal has considered 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 of the driver’s licence status on the Ministry of Transportation’s (“MTO”) 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 Act.

7The respondent presented evidence that the employee’s licence was suspended for a prescribed Criminal Code offence at the time of the impoundment. Accordingly, the vehicle was lawfully impounded pursuant to s. 55.1(1) of the Act.

8The appellant testified that she owns a heavy equipment contracting business in Northwestern Ontario which requires the use of two trucks with towing capabilities in order to operate the business. She stated that the employee who was driving the vehicle on the date of the impoundment was initially hired in 2021 but was laid off because of shortage of work. He was rehired on July 1, 2023.

9The appellant maintains that she exercised due diligence in ensuring that the employee had a valid licence because he presented a valid driver’s licence to the manager when he was rehired in July 2023. The appellant submits that her employees’ licence was suspended on August 22, 2023, for impaired driving. However, she had no way of knowing between the date of his rehire and the impoundment (a period of five months) because the employee never notified her.

10I find the appellant to be a credible witness and believe that she was not aware that the employee’s licence was suspended at the time the vehicle was impounded. However, during cross-examination, she acknowledged that her business does not have any policies regarding an employee’s obligation to notify the employer of any change in licence status and they do licence checks once a year. In this case, I find that checking employee drivers’ licences once a year falls short of due diligence to ensure drivers are properly licenced to drive a company vehicle year-round. In my view, the nature of the appellant’s business requires employees to regularly drive long distances to job sites. As a result, I find having a valid licence to be an important part of an employee’s qualifications to carry out the tasks of their employment. In this context, therefore, due diligence requires more frequent checks to verify that employee drivers’ licences are valid. The appellant appears to rely mainly on employees to be forthcoming about any changes in their licence status. I find this cannot always be relied upon and does not demonstrate due diligence on the part of the appellant as they are not being proactive in checking driver’s licence validity which can now be performed online with ease.

11As 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 the employee had a valid licence at the time of or shortly before the impoundment.

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 Act. 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 making arrangements 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.

15The appellant argues that the impoundment of the vehicle will result in exceptional hardship because she requires two pickup trucks to operate her business. One truck is used to tow equipment and the other is needed to transport fuel to jobsites. She submits that she has looked into renting an alternative vehicle through rental companies, however, none of the rental companies in her area permit towing or transporting fuel. Further, she has been unable to operate her business as a result and if she does not get her truck back, she will not be able to fulfill future contracts during the impound period which will result in her having to layoff another employee and have financial consequences for her business.

16The respondent argues that the appellant does not meet the test for exceptional hardship because she owns a second pickup truck(2020 Dodge RAM) and an SUV (2018 Acura). As a result, she has access to alternative vehicles during the impound period and does not meet the test for exceptional hardship.

17I find the appellant has access to two alternative vehicles during the impound period and does not meet the test for exceptional hardship. During cross-examination, she conceded that she owns another truck and an SUV for personal use which she uses to get to and from her employment as a nurse. Further, she has been able to obtain groceries and transport her children to and from school and other appointments.

18Since 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.

19I am not satisfied that, the appellant has proven, on a balance of probabilities, that she is without alternatives to the impounded vehicle.

CONCLUSION

20I find the appellant has not established that she exercised due diligence in attempting to determining that the employee had a valid licence prior to the impoundment under section 50.2(3)(c) of the Act. Nor has she established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. As a result, I confirm the impoundment.

ORDER

21Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.