Ines Couto v. Registrar of Motor Vehicles, 2024 CanLII 2626

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 15533/MVIA

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:

Ines Couto Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Ines Couto, Self-represented

For the Respondent: Leila Pereira, Agent

Heard by teleconference: January 15, 2024

OVERVIEW

1Ines Couto (the "appellant") appeals the 45-day impoundment of her 2024 Jeep Cherokee (the "vehicle") on December 20, 2023, 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 her daughter, Jennifer Couto, who was driving while her licence was under suspension due to a criminal conviction.

PRELIMINARY MATTER

2Is the appellant's daughter, Dianne Ruggiero, allowed to testify as a witness?

3On January 12, 2024, the appellant provided the Registrar, via email, with a notification that she would request to have her daughter, Dianne Ruggiero, testify at the hearing. The email also contained a will-say statement of Ms. Ruggiero.

4The Registrar did not consent to the testimony of Ms. Ruggiero, as the request and the will-say statement were provided less than 10 days before the hearing.

5Rule 23.3 of the Licence Appeal Tribunal Rules (the "Rules") states:

Disclosure in the HTA appeal types set out in 23.2(b), (c) and (d) shall be made:

a. By the appellant at least 10 days prior to the hearing.

b. By the Registrar of Motor Vehicles or Minister of Transportation at least 5 days prior to the hearing.

6Vehicle impoundments cases like the present matter are in rule 23.2(c).

7Rule 9.5.2 of the Rules states parties to a dispute before the Tribunal's General Service (GS) are required to exchange documents, witness lists and will-say statements, etc. at least 10 days before the hearing. This timeline is modified by Rule 23.3, cited above. Rule 9.3 of the Rules states that if a party fails to comply with any Rule, direction or order with respect to the exchange or production of witness lists, the party may not call a witness who is not included on a witness list filed in compliance with the Rules, direction or order to give evidence without the permission of the Tribunal.

8The Registrar submits that the late exchange of the witness list and the will-say statement produces prejudice to the Registrar as they were not given proper time to prepare for cross-examinations.

9The appellant submits that, as the Notice of Hearing was sent to the parties on January 8, 2024, and the hearing is today's date of January 15, 2024, it was not possible to produce the witness list within the 10-day period.

10Upon questioning of the appellant by myself, it was established that the testimony of Ms. Ruggiero is evidence that could be obtained from the appellant herself and was therefore unnecessary for the purpose of this hearing.

11Given the above, pursuant to Rule 9.3 and in considering section 15(1) of the Statutory Powers Procedure Act, which allows the Tribunal to exclude "anything unduly repetitious," I declined to hear from Ms. Ruggiero.

12With the consent of the Registrar, Ms. Ruggiero, who was on a third-party line, was allowed to assist her mother with respect to her memory and language, as the appellant is a senior and as English is not her first language.

ISSUES

13The issues to be determined are:

i. 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, under s. 50.2(3)(c) of the Act.

ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

14I conclude that the impoundment will result in "exceptional hardship", and I direct the Registrar to release the impounded vehicle.

ANALYSIS

15The agent for the Registrar presented evidence that the appellant's vehicle was stopped and impounded by police upon discovering it was being driven by a person, Jennifer Couto, whose licence was suspended due to a prescribed Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.

Issue 2 - The appellant did not exercise due diligence in accordance with [s. 50.2(3)(c)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).

16The 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 if Jennifer Couto had a valid driver's licence.

17In 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.

18Whether 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.

19Examples 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.

20The appellant testified that, when asked by the driver to borrow the vehicle, the appellant asked the driver if she had her driver's licence. When the driver assured her that she did, the appellant loaned her the vehicle. The appellant testified that she had never seen her driver's licence and did not request to see it then. The appellant testified that she always assumed that the driver had a licence, as she had her own vehicle in the past.

21The Registrar submits that the appellant did not exercise due diligence as she did nothing other than ask as to whether the driver had a licence.

22I agree with the Registrar. In the very least, it is incumbent upon an appellant to have asked to see the driver's licence of an individual who wishes the use of their vehicle.

23I therefore find that the appellant did not exercise due diligence.

Issue 2 - The impoundment will result in exceptional hardship as that term is defined in the Act and the Regulation

24Section 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 to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate the lack of an alternative to the impounded 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.

25If it is found there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle or that there would be an immediate, significant and long-lasting financial or economic loss to any person ordinarily transported by the vehicle.

26The appellant submits that the impoundment will result in exceptional hardship as she has no reasonable alternative to the vehicle.

27The respondent submits that the appellant does have access to reasonable alternatives to the vehicle, and therefore does not meet the threshold test for exceptional hardship.

28The appellant testified that she lives in a rural area outside of Omemee, Ontario. She has few financial resources as she is a senior living on her and her late husband's small pensions. While taxis, ride-sharing and rental vehicles are available, she does not have the financial resources to afford those options. Her daughter lives in Mississauga, Ontario and her grandson lives in Scarborough, Ontario. The closest, the grandson, is approximately a 1.5 hour-long drive away from the appellant.

29The appellant testified that a neighbour has had a friend obtain groceries for the appellant when needed. She also testified that her grandson, who, as noted, lives in Scarborough, was able to take her to an appointment with her doctor in Scarborough for a scheduled appointment. During the same trip, the appellant was able to obtain her medications.

30The appellant testified that she has difficulties with her knees for which her doctor has recommended physiotherapy sessions. However, she is unable to access a physiotherapist without any transportation. She testified that her neighbour is unable to assist with this, as it was the neighbour's friend that obtains the groceries, and that friend is unavailable to transport her personally to appointments.

31The Registrar submits that the appellant has alternatives to the impounded vehicle. Her neighbour arranges to have the appellant's groceries delivered to her. The appellant was able to have her grandson transport her to her doctor in Scarborough as well as obtain her medications. She also has access to 911 emergency services.

32While I agree with the Registrar with respect to some of the appellant's needs being met, in one instance by her grandson, and occasionally by her neighbour's friend, the appellant is unable, due to a lack of transportation, to obtain the medical services, namely physiotherapy, recommended by her physician. I conclude, therefore, that there is no reasonable alternative to the impounded vehicle and that the impoundment will result to a threat to the health or safety of the appellant, pursuant to section 10 of the Regulation.

CONCLUSION

33As the appellant has established that there is no reasonable alternative to the impounded vehicle, and that the impoundment of the vehicle will result to a threat to her health and safety, I grant the appeal.

I ORDER AS FOLLOWS:

34Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant's motor vehicle..