Licence Appeal Tribunal File Number: 16329/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act

Between:

Iain Raine

Appellant

and

The Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR: Jan Dymond

APPEARANCES:

For the Appellant: Iain Raine, Appellant

For the Respondent: Sadia Ashraf, Agent

HEARD: via teleconference: October 21, 2024

OVERVIEW

1Iain Raine, the appellant, appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on September 27, 2024. At the time of the impoundment, Brittany Farrell ("the driver") was driving the vehicle without an ignition interlock device contrary to her conditions of licence under subsection 55.1(1) of the Act. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that at the time of the impoundment, the driver's licence was not subject to an ignition interlock device condition ("condition"); that the appellant exercised due diligence to confirm that the driver had a valid driver's licence and was not subject to a condition, and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. whether 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 subject to the condition described in paragraph 2 of subsection 55.1 (1): (ignition interlock device);

ii. 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 or subject to the condition described in paragraph 2 of subsection 55.1 (1) under section 50.2(3)(c) of the Act; or

iii. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the impoundment of the vehicle is confirmed.

ANALYSIS

The driver's licence at the time of the impoundment was subject to the condition described in paragraph 2 of subsection 55.1(1): (ignition interlock device).

5I find that the driver of the vehicle was subject to an ignition interlock device condition at the time of the impoundment for the reasons that follow.

6In order to satisfy this ground of appeal, the appellant must show that the driver's licence was not under suspension or subject to an ignition interlock condition at the time the vehicle was detained for impoundment.

7The appellant submits that the driver was aware that an ignition interlock condition had been ordered at the time of her licence suspension but believed that the condition automatically had been lifted after five years. The appellant also submits that the driver's belief was reinforced because she had not been notified by the Ministry of Transportation of any steps required to apply for removal of the condition.

8The appellant submits that following the impoundment, the driver had applied for and received removal of the condition. The appellant submits that because the driver was eligible to have the condition removed, the driver should not have been subject to the condition at the time the motor vehicle was impounded.

9The respondent submits evidence confirming that the driver's licence was subject to a mandatory ignition interlock device condition at the time that the motor vehicle was impounded (Exhibit 2, p.16). It also submitted documentary evidence confirming that the driver was notified by mail on October 25, 2021, of the Requirements for Removal of Ignition Interlock Condition (Exhibit 2, p. 21). The appellant does not challenge the facts submitted by the respondent.

10I find the respondent's evidence to be persuasive and that the driver was subject to an ignition interlock device requirement at the time of the impoundment. Whether or not the driver was aware of the condition or was eligible to have it lifted are not sufficient reasons to find that the driver was not subject to the condition at the time of the impoundment.

11The appellant's appeal on the grounds that the driver's licence was not subject to an ignition interlock device condition at the time of the impoundment is dismissed.

The owner of the motor vehicle did not exercise due diligence.

12I find that the owner of the motor vehicle did not 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 to be impounded was not then subject to an ignition interlock condition.

13To prove due diligence, the appellant must establish that he took reasonable care and undertook actions to determine that the driver was properly licensed. Reasonable care does not mean perfection and is considered in the context of the circumstances under which use of the vehicle is being permitted by its owner.

14The appellant testifies that he previously had asked the driver whether the condition was in effect and the driver conveyed her understanding that it was lifted automatically five years after the suspension of her licence. He further testified that he had looked at her licence, noted the "I" indicated under Conditions but had not investigated its meaning.

15The respondent submits that the appellant did not exercise due diligence and that, being aware of the prior suspension and ignition interlock condition, the appellant should have taken additional steps to determine the meaning of the "I" condition indicated on the driver's licence.

16I agree with the respondent that by not attempting to learn the meaning of the "I" condition indicated on the driver's licence, the appellant did not complete the steps required to satisfy the requirement to fulfill his duty to conduct due diligence, especially in view of the fact that he was aware of the driver's history of a suspension and ignition interlock device condition.

17The appellant's appeal on the grounds that the appellant 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 to be impounded was not then subject to an ignition interlock condition is dismissed.

The impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act.

18I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act for the reasons that follow.

19The appellant appeals on the grounds of exceptional hardship because: he requires a vehicle for his employment; the impoundment has the potential to put his employment at risk; the impoundment presents a potential health risk to his family, and that the impoundment fees represent a financial hardship.

20Section 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. The first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

21The owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

22In his testimony, the appellant acknowledges that the driver purchased an alternative vehicle a few days prior to the hearing and that the vehicle is available for the appellant's personal and employment related needs as well as for transporting himself and family members to medical appointments. He submits that his chief concern is the financial impact of the impoundment fees.

23Section 10(2) of the Regulation excludes the following as grounds for exceptional hardship: (b) financial or economic loss to any person, and (c) loss of employment or employment opportunity to any person; however, s. 10(3) sets out the conditions under which exceptions may be granted. Under s. 10(3), I may consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle.

24I find that because an alternative to the impounded motor vehicle is available, the applicant has not met the test for exceptional hardship under s.10(I) or 10(3) of the Regulation.

25The appellant's appeal on the grounds that the impoundment will result in exceptional hardship is dismissed.

Conclusion

26Given the above, I find that appellant has failed to establish, on a balance of probabilities, that:

a. The driver's licence at the time of the impoundment was not subject to the condition described in paragraph 2 of subsection 55.1(1) (ignition interlock device);

b. The owner of the motor vehicle exercised due diligence in attempting to determine whether the driver of the motor vehicle was subject to an ignition interlock condition at the time of the impoundment, or

c. That the impoundment result in exceptional hardship under 50.2(3)(d) of the Act).

I ORDER AS FOLLOWS:

27For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I confirm the impoundment order.