Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15622/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 under section 55.1 of the Act

Between:

David Guse Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: David Guse, Self-represented For the Respondent: Leila Pereira, Representative

HEARD: February 13, 2024

OVERVIEW

1David Guse, the appellant, appeals from the impoundment of his 2012 Chevrolet pickup truck, the vehicle, on January 24,2024 for 45 days. At the time of the impoundment the vehicle was being driven by a person other than the owner who did not have a valid driver’s licence (the “driver”).

2The appellant appeals on the grounds that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will result in exceptional hardship to him because he needs his vehicle to get to medical appointments, to get his medications, and to go grocery shopping because he has difficulty walking due to his medical condition.

ISSUES

3The issues in dispute are:

i. Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

result

4I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the HTA may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), - (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (c) that she 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, and (d), that the impoundment will result in exceptional hardship.

Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

7I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver’s licence of the driver of the vehicle at the time of impoundment was not under suspension.

8To succeed on this ground of appeal, the appellant must show that he took reasonable steps to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

9The appellant testified that a friend brought over his friend (the “driver”) and asked the appellant if the driver could drive the vehicle. The appellant was aware that his friend did not have a valid driver’s licence.

10The appellant said he asked his friend if the driver had a valid driver’s licence and both his friend and the driver assured him that she did have a valid driver’s licence.

11The appellant didn’t ask to see the driver’s licence of the driver or make any other attempts to verify this information because the appellant was having medical issues with his vision and believes he could not have read the driver’s licence even if it had been shown to him. Instead, the appellant accepted the word of his friend and the word of the driver and allowed her to drive the vehicle.

12At the hearing the appellant conceded that he could have tried to use his magnifying device and lights to read the driver’s licence of the driver if it had been asked to be shown to him. However, the appellant said he did not require the driver to show her driver’s licence to him.

13The appellant now understands that the driver lied to him.

14Based on the appellant’s testimony, it is clear that the appellant did not take any reasonable steps to determine that the driver had a valid driver’s licence. Accepting the word of his friend and the driver that the driver has a valid driver’s licence does not constitute due diligence.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

15I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

16Section 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. In order to establish exceptional hardship, 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:

…the 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.

17If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

18I can only 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. I find that the appellant has not established that there is no alternative to the impounded vehicle.

19Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

20The appellant testified that he is retired and his main concern is that he needs the vehicle to attend medical appointments. Since the impoundment, the appellant admitted that he has been able to attend his medical appointments by obtaining transportation from friends, use of taxis and taking the bus to another municipality for medical treatment, albeit at a cost. The appellant has also registered for a local transit service and may be eligible for rides from them at a later time, has been able to walk to the grocery store approximately 10 minutes away and intends to ask a family member for assistance during the remainder of the impoundment period.

21The appellant also testified that for his upcoming medical appointment in a few days time, if it is not snowing or raining, he will drive his motorcycle to the medical appointment if necessary.

22The appellant testified that he has been able to obtain his medications except for those that he cannot purchase for financial reasons unrelated to the impoundment.

23The appellant testified that the loss of his vehicle is inconvenient to him and the impoundment fees will be a financial hardship on him.

24Inconvenience is not a factor which the Tribunal can take into consideration.

25I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

26I find that the appellant has alternatives to the impounded vehicle available to him during the impoundment period including transportation from friends, use of taxis and the bus, possible rides from a local transit service, walking to the nearby grocery store, anticipated assistance from a family member during the remainder of the impoundment period, and by driving his motorcycle, subject to weather.

Conclusion

27I find the appellant has not established that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was impounded was not under suspension within the meaning of s. 50.2(3)(c) of the HTA.

28I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

29Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.