Licence Appeal Tribunal File Number: 16333/MVIA

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

Between:

Barbara Hogan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Barbara Hogan

Miranda Hogan, Representative

For the Respondent:

Leila Pereira, Representative

HEARD: October 28, 2024

OVERVIEW

1The appellant, Barbara Hogan, appeals under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act") from the 45-day impoundment of a 2010 Ford motor vehicle. The appellant's motor vehicle was impounded on September 29, 2024. At the time it was detained in order to be impounded, Laura Hogan was driving the vehicle while her licence was suspended as a result of a Criminal Code conviction.

2The appellant appeals on the grounds that she exercised due diligence and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

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

RESULT

4I find the appellant has not established that she exercised due diligence in accordance with section 50.2(3)(c) of the Act. I further find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2010 Ford motor vehicle (the "vehicle");

ii. on September 29, 2024, the police discovered the vehicle being driven by the appellant's niece Laura Hogan (the "driver"); and

iii. the licence of the driver was under suspension for a prescribed Criminal Code conviction at the time the police detained the vehicle for impoundment.

Whether the appellant exercised due diligence in accordance with the Act

6The burden is on the appellant to prove on a balance of probabilities that she exercised due diligence in attempting to determine that the driver's licence of the driver was not suspended at the time the vehicle was detained in order to be impounded. I find that the appellant has not met her burden.

7This ground of appeal requires the vehicle owner to show on a balance of probabilities that she took reasonable steps to determine that the driver's licence was not suspended. In this context, due diligence requires more than making assumptions as to the facts. It requires specific steps to be taken by the owner to confirm that the licence was not suspended. The specific steps that amount to due diligence depend on the circumstances of each case. Reasonable care does not mean perfection. The Tribunal has previously held that these steps or actions could include examining the driver's licence card or document, viewing Ministry of Transportation Ontario ("MTO") documents that pertain to the driver's licence status, inquiring of the MTO online or at Service Ontario as to the driver's licence status, or discussing the licence status in conversation with the driver. These various steps or actions are not an exhaustive list. The level of inquiry and action required can depend on the nature of the relationship between the owner and the driver.

8I find the appellant did not take reasonable steps to confirm that the driver's licence of the driver was not suspended at the time the vehicle was detained in order to be impounded.

9The appellant testified that she voluntarily lent the vehicle to the driver as she did not want her to walk home alone at night. She testified that she did not take steps to verify that the driver had a valid driver's licence prior to lending her the vehicle.

10The appellant testified that she was aware that the driver had been convicted of impaired driving offences on three occasions. The appellant testified that she understood that the driver had completed the back on track program and paid any outstanding fines, and thus, she assumed that the driver had driving privileges. She testified that she did not ask to see the driver's physical licence, and did not check the MTO website to see if the driver had driving privileges. She also did not ask the driver to provide any paperwork to show that she had a valid driver's licence and did not see any such paperwork.

11The appellant testified that she has not seen the driver drive any vehicles since about 2019.

12I find that the testimony of the appellant establishes that she took no steps to determine that the driver's licence of the driver was not under suspension or not subject to an ignition interlock condition as a result of a Criminal Code conviction. She assumed that the driver had driving privileges as she understood she had completed the back on track program and paid her fines. Prior to lending the vehicle, she did not ask to view the physical licence of the driver, and did not check her licence status with the MTO or Service Ontario. She further did not ask to view any paperwork that would demonstrate that the driver had driving privileges.

13In my view, the appellant did not take any steps and made no reasonable efforts to determine the licence status of the driver. Instead, she assumed the driver had a valid driver's licence.

14As noted above, this ground of appeal requires the vehicle owner to demonstrate the exercise of due diligence by showing that she took reasonable steps to determine that the driver's licence of the driver was not suspended. In my view, due diligence required the appellant to do more than she did, and I find that she did not take reasonable steps. The appellant has therefore not met her burden.

15Given the evidence before the Tribunal, I find, on a balance of probabilities, that the appellant did not exercise due diligence under the Act to determine that the driver's licence was not suspended at the time the vehicle was detained in order to be impounded.

Whether the impoundment will result in exceptional hardship

16The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find the appellant has not established that there is no alternative to the impounded vehicle and she has not met her burden.

17Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

18Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he 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.

19If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

20If the owner proves that there is no alternative to the impounded vehicle available, then subsection 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or property of a community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses.

21The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

22The appellant testified that she suffers from medical conditions and requires her vehicle. She testified that public transportation is not available to her, and she can not afford to rent a motor vehicle or use Ubers. However, she acknowledged that she could access Bancroft Community Transit. She testified that, since the impoundment, she has had to reschedule her bi-yearly appointment for her lungs, and will need to reschedule it again to a period after the impoundment. She testified that she visits her family often and, since the impoundment, her son has taken her to an appointment. She has no other appointments scheduled.

23The appellant testified that, since the impoundment, her son has taken her grocery shopping two to three times.

24The appellant testified that, since the impoundment, her prescription medication has been delivered to her residence.

25The appellant testified that she provides care to her 93-year old father and that she requires the vehicle to attend his residence with food and to support his day to day living. She testified that her sister was looking after her father until the day prior to the hearing, and now it is her turn to do so. Her sister returned to Alberta for work. The appellant testified that her father lives alone about 10 to 15 kilometres away which is about a 10-minute car ride. Since the impoundment, her sons have driven her to her father's residence about three times.

26There was some evidence presented to demonstrate that the appellant had access to another vehicle registered in her name. However, she testified that the vehicle is not road worthy and needs to have a safety check and she can not afford the cost. She is on a fixed income.

27The appellant testified that she has had a conversation with the driver who will be paying the impoundment fees.

28I accept the appellant's testimony that she needs the vehicle and has been experiencing financial difficulties and inconvenience since the impoundment of the vehicle. However, I find that the appellant has not established that there is no alternative to the impounded vehicle. I note that, since the impoundment, she has gotten assistance from her family, in particular her sons. One son has taken her to a doctor's appointment and grocery shopping. Her sons have taken her to visit her elderly father so that she can continue to provide care and assistance.

29I note that her prescription medications have been delivered to her residence.

30I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.

31Under the circumstances, I find the appellant has not proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act must fail.

ORDER

32Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant's vehicle is confirmed.