Derek Lang v. Registrar of Motor Vehicles, 2024 CanLII 23484

Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 15713/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:

Derek Lang Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

APPEARANCES:

For the Appellant: Derek Lang, Self-represented For the Respondent: Sadia Ashraf, Representative

HEARD: March 18, 2024

OVERVIEW

1Derek Lang, the appellant, appealed from the impoundment of his 2017 Jeep (the "vehicle"), on February 29, 2024 for 45 days. At the time it was impounded, the appellant's vehicle had been stopped by the police and his former spouse, Erin Lang (the "driver"), was driving it in contravention of a condition that prohibits her from driving a motor vehicle that is not equipped with an ignition interlock device.

2The appellant appeals on three grounds. The first ground is that the driver's licence of the driver of the vehicle at the time it was detained in order to be impounded was valid and not then subject to a condition. The second ground is that the appellant exercised due diligence in attempting to determine that the driver's licence of the driver was valid and not then subject to an IID condition The third ground is that the impoundment will result in exceptional hardship because the vehicle is needed for the driver to get to work and to transport their children, and the impound fees and expenses associated with the impoundment will be a hardship.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the driver's licence of the driver subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA at the time the vehicle was detained to be impounded?

ii. Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

ii. Issue 3: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of Ontario Regulation 631/98 ("Regulation")?

RESULT

4I find that the driver's licence of the driver at the time it was detained in order to be impounded was subject to a condition that prohibited her from driving a motor vehicle that is not equipped with an ignition interlock device. I find that the appellant did not exercise due diligence. I also 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 Highway Traffic Act, R.S.O., 1990, c. H.8 (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), (b.1), (c) and (d) of the HTA. Specifically, the appellant appeals on grounds (b.1) 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 subject to the condition described in paragraph 2 of subsection 55.1(1), and on ground (c), that the appellant exercised due diligence in attempting to determine that the driver's licence of the driver was valid and not then subject to an IID condition, and on ground (d), that the impoundment will result in exceptional hardship.

7Paragraph 2 of subsection 55.1(1) provides for impoundment of a vehicle when it is being driven by a person in contravention of a condition on his or her driver's licence under a conduct review under s. 57 that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.

Issue 1: Was the driver's licence of the driver subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA at the time the vehicle was detained to be impounded

8I find that the appellant has failed to prove on a balance of probabilities that the driver's licence of the driver was not subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA on the date of impoundment.

9The appellant did not testify at the hearing.

10The appellant's sole witness, the driver, testified that she was driving the vehicle when it was stopped by the police and subsequently impounded. The driver testified that she did not know of the IID condition on her driver's licence because she did not receive any mail notifying her of this from the Ministry of Transportation, and there had been no issue raised about the IID condition on her driver's licence when she last renewed her driver's licence.

11However, in cross-examination, the driver admitted that she never checked for, noticed, or read, the condition written on her driver's licence card although she is now aware that it was written there. Ignorance of a condition on the driver's licence is not an excuse for the failure of the driver to comply with the condition.

12The Registrar's records filed before me, make it clear that at the time the vehicle was detained to be impounded the driver's licence of the driver was subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA, specifically a prohibition on driving a vehicle unless equipped with an ignition interlock device, and I so find.

Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

13I 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 had a valid driver's licence that would allow her to drive the vehicle on the date of the impoundment.

14To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver's licence of the driver of the motor vehicle at the time it was impounded did not have an IID condition that was not being complied with. The circumstances of each case will dictate what steps would amount to due diligence.

15The driver testified that she did not know of the IID condition on her driver's licence as set out above. However, in cross-examination, the driver admitted that she never checked for or noticed the condition written on her driver's licence card although she is now aware that it was written there.

16After the impoundment, the driver learned that she needed to have her physician complete a substance use assessment. That was done and the condition was removed from her driver's licence on March 12, 2024.

17The relevant date for this hearing is the date of impoundment.

18To be successful, the due diligence ground of appeal requires that the appellant establish that he exercised due diligence in attempting to determine if the driver's licence of the driver was valid and not subject to the IID condition. Here there is no evidence that the appellant took any steps to exercise due diligence. The appellant put forward no evidence to support his exercise of due diligence, and did not testify at the hearing although, in closing submissions, the appellant suggested that he doesn't believe he should have to check the driver's licence of the driver because she is his former spouse. This submission is not helpful because the law states otherwise.

19As a result, I 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 if the driver's licence of the driver was subject to the IID condition.

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

20I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

21Section 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.

22Only if the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), must I 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.

23I 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.

24Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

25I find that the appellant has not established that there is no alternative to the impounded vehicle.

26The appellant submitted that the impoundment will result in exceptional hardship because the vehicle is needed for the driver to get to work and to transport their children, and the impound fees and expenses associated with the impoundment will be a hardship.

27The appellant did not provide any evidence of exceptional hardship to him.

28The driver testified that the impoundment will cause exceptional hardship because she needs the vehicle to get to her work and to transport the children to school and other appointments. However, in cross-examination the driver conceded that the she has not missed any work at either her full-time or part-time employments because she has been able to walk to one of her employments and her boyfriend has been able to drive her to work up until now. The children have also not missed any school because her boyfriend has been able to drive them to school. The children have not missed any medical appointments. The driver has missed one medical appointment but this will be re-scheduled. The driver also confirmed that uber, taxis and rental vehicles are available to her but she cannot afford them. The driver's boyfriend has been able to provide transportation to get groceries.

29I find that alternative transportation is available during the impoundment period. There is no evidence that the appellant is without alternative transportation, or even that the driver is without alternative transportation. According to her testimony, the driver has alternatives including walking to work, transportation provided by her boyfriend for herself and her children, and publicly available uber, taxis, rental vehicle, albeit at a cost.

30I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle, so I have not considered financial loss.

Conclusion

31The appellant has not established any of his grounds of appeal. The evidence is clear that the driver's licence of the driver was subject to the condition described in paragraph 2 of subsection 55.1(1) of the HTA, specifically ignition interlock condition, at the time the vehicle was detained to be impounded.

32The appellant has not established that he exercised due diligence in attempting to determine that the driver's licence of the driver was not subject to the IID condition when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

33I 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. The appellant has an alternative to the impounded vehicle.

ORDER

34Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.