Kristan Johnston v. Registrar of Motor Vehicles, 2024 CanLII 126339

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:

Kristan Johnston Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Kristan Johnston – did not attend For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: December 4, 2024

Overview

1Kristan Johnston (the "appellant") appeals the 45-day impoundment of her 2024 Nissan Pathfinder (the "vehicle") on October 6, 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 the appellant whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment of the vehicle on October 21, 2024. The date of release of the vehicle was November 20, 2024. On November 21 and 25 2024, the Tribunal requested, via email to the appellant, if she wished to continue the appeal, as the date of release had passed. On November 25th, the appellant advised the Tribunal that she "would like to appeal the $3800 charges in impound fees". On November 26, 2024 a Notice of Hearing was sent to the parties, including the appellant, advising them of the Telephone Hearing of today's date.

3On December 2, 2024, a Hearing Reminder was sent by the Tribunal to the parties via email, again including the appellant, advising of the date and time of the hearing (December 4, 2024 at 1:30 p.m.) as well as the call-in information for the hearing.

4At the commencement of today's hearing, Steve Grootenboer, agent for the Registrar of Motor Vehicles ("Registrar") attended. However, the appellant did not.

5At 1:44 p.m., the Tribunal attempted to contact the appellant by telephone. No answer was received. The Tribunal then left a telephone voice message, reminding the appellant of the hearing. No response was received.

6At 1:47 p.m., the Tribunal sent an email to the appellant, again reminding her of the hearing. Again, no response was received.

7Rule 3.7 of the Licence Appeal Tribunal Rules, 2023 (the "Rules") states that a party and or their representative must attend their in-person or electronic hearing before the Tribunal. If a party is unable to attend the start of the hearing, they must advise of the nature of "the unforeseen event that prevents [them] from attending".

8Rule 3.7.1 of the Rules states:

If a party, who has been given notice of a hearing in accordance with the SPPA, does not attend their in-person or electronic hearing within 30 minutes of the scheduled start time as stated in the hearing notice, the Tribunal may:

a. Proceed with the hearing in the absence of the party; and/or

b. Make any order it considers appropriate in the circumstances.

In determining whether to proceed with the hearing in the absence of a non-attending party, the Tribunal will consider the reasons for the non-attendance, if any.

9As noted, the appellant was provided with a Notice of Hearing as well as a Notice Reminder. After the commencement of the hearing, the Tribunal attempted to contact the appellant by both telephone and email, with no response. I also note, that the appellant has not provided any indication of her not attending the hearing, nor any reasons. Therefore, pursuant to Rule 3.7.1(a), at 2:00 p.m., the hearing proceeded in the appellant's absence.

ISSUES

10The issue to be determined is:

1. Whether 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 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

11I conclude that the appellant did not exercise due diligence and that the impoundment will not result in "exceptional hardship", and I confirm the impoundment of the vehicle.

ANALYSIS

12The Registrar of Motor Vehicles (the "Registrar") presented evidence that the vehicle was stopped by police while it was being driven by the appellant, whose licence was suspended due to a prescribed Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.

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

13The 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 that her driver's licence was valid at the time of the impoundment.

14In 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.

15Whether 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.

16Examples 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.

17I note that the appellant did not appear at the hearing to provide any testimony, did not offer any documentary evidence and did not submit any written submissions. There were no witnesses on her behalf. The only insights I have with respect to the appellant's grounds for her appeal is the Notice of Appeal which provides some details of her position.

18With respect to the ground of due diligence, the appellant states in the Notice of Appeal:

My court date was October 2, 2024 [the date on which the appellant was convicted of driving with blood alcohol content in excess of .08]. I called the MTO the lady there told me the paperwork would not be filed until Monday [October 6]. I asked her if I could drive until Monday and she said "technically yes".

19The Registrar submits that the appellant has provided no evidence with respect to who she spoke to at the Ministry of Transportation ("MTO"]. Without that evidence, and the appellant's presence to provide testimony to that phone call, the Registrar submits that the appellant has not proven on a balance of probabilities that she exercised due diligence in determining that her driver's licence was valid on the time of the impoundment.

20I agree with the Registrar. Despite the fact that the onus of proof is on the appellant to prove her grounds for this appeal, she did not attend the hearing nor provide sufficient evidence to support to the ground of due diligence. The appellant has not provided any specific evidence or documentation with respect to who she spoke to at the MTO. Nor was the appellant available to provide clarification as to what was told to her at her court appearance on October 2, 2024 with respect to the status of her licence.

21Given the above, I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that her driver's licence was not under suspension at the time the vehicle was impounded.

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

22Section 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 available to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate that they have considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any 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.

23If I find there is no alternative to the vehicle, I must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle or to the public health and safety or the environment or property of a community in whose service the motor vehicle is ordinarily used. I may also at that stage consider if there would be an immediate, significant and long-lasting financial or economic loss or loss of employment or education (or an opportunity for the same) to any person ordinarily transported by the vehicle other than the suspended driver.

24In her Notice of Appeal, with respect to the ground of exceptional hardship, the appellant stated:

"I am also on short term disability at 70% of my wage until I am cleared to go back to work. This will create financial hardship for my family…I haven't told my employer that I am prohibited from driving yet and I will most likely lose my job when I do…We have 3 kids and my husband's truck is not reliable to drive our family around."

25The Registrar submits that, notwithstanding the appellant's statements in her Notice of Appeal and the appellant's absence at the hearing which eliminates any ability to further question her on those statements, the appellant is nevertheless barred from the ground of exceptional hardship, pursuant to s. 10.3(d) of the Regulation 631/98 (the "Regulation") which states:

S. 10(3) The Tribunal may consider [exceptional hardship] if the owner demonstrates that,

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver's licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2)(b), (c) or (d).

26The losses referred to in clause (2)(b), (c) and (d), above, are financial, economic, educational and training losses resulting from the impoundment of the vehicle. I agree with the Registrar that the Tribunal may not consider the impact of these losses on the appellant, as given s. 10(3)(d), the appellant was the driver of the vehicle at the time of impoundment. However, as stated in her Notice of Appeal, the appellant has three children and a husband who may also suffer the impact of these losses due to the impoundment of the vehicle. The Regulation has no prohibition on the Tribunal considering their losses. Although the Tribunal does not have any evidence that the husband or children may suffer the impact of the losses from the impoundment, I nevertheless conclude that, as it is a possibility, s. 10(3)(d) does not prohibit me from considering the ground of exceptional hardship.

27In relation to the ground of exceptional hardship and with respect to the appellant's submission that she may lose her employment, the Registrar submits that, according to the Notice of Appeal, the loss of the appellant's employment is due to her prohibition from driving, not due to the impoundment of the vehicle. I concur, as that is, indeed, what the appellant expressed in the Notice of Appeal.

28The Registrar also submits that, without further documentation or the appellant's evidence, it is not possible to determine why her husband's vehicle is unreliable. I agree with the Registrar. The husband's truck may, indeed be a viable alternative to the impounded vehicle. However, the burden lies with the appellant to establish that it is not. Due to her absence, we have no testimony to that effect. Also, there is no evidence before me as to what other alternative means of transportation (ie: public transit, rental vehicles, assistance from friends or family, etc.) are available to the appellant during the period of impoundment.

29I therefore find that the appellant has not proven on a balance of probabilities that there are no alternatives to the impounded vehicle. As such, I need not consider the remaining components of the exceptional hardship test.

Conclusion

30As I have found that the appellant has not proven on a balance of probabilities that she exercised due diligence pursuant to s. 50.2(3)(c) of the Act, or that the impoundment of the vehicle will result in exceptional hardship pursuant to s. 50.2(3)(d) of the Act, her appeal must fail.

I ORDER AS FOLLOWS:

31For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I confirm the impoundment order.