Licence Appeal Tribunal File Number: 15725/MVIA

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

Between:

Kumarie Sahadeo

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Kumarie Sahadeo, Self-Represented

For the Respondent:

Leila Pereira, Representative

HEARD: March 22, 2024

OVERVIEW

1The appellant advised that her first name is Kumarie and her last name is Sahadeo. In the notice of appeal, dated March 11, 2024, she mistakenly listed her first name as Sahadeo and her last name as Kumarie. I note that the Ministry of Transportation documentation correctly lists the appellant’s name as Kumarie Sahadeo. I am now correcting this error in this decision by referring to the appellant as Kumarie Sahadeo.

2The appellant, Kumarie Sahadeo, 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 Toyota motor vehicle. The appellant’s motor vehicle was impounded on March 9, 2024. At the time it was detained in order to be impounded, her son Duane Sahadeo was driving the vehicle while his licence was suspended as a result of a Criminal Code conviction.

3The appellant appeals on the grounds that she exercised due diligence and that the impoundment will cause exceptional hardship.

ISSUES

4The 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

5I 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

6The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2010 Toyota motor vehicle (the “vehicle”);

ii. on March 9, 2024, the police discovered the vehicle being driven by Duane Sahadeo (the “driver”); and

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

Whether the appellant exercised due diligence in accordance with the Act

7The 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.

8This 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 of 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.

9I 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.

10The appellant testified that, at the time of lending the vehicle to the driver, she was aware that the driver had been charged with an impaired driving offence, and that he had been convicted. She was further aware that he had filed an appeal of the conviction but was unsure when he had filed the appeal, or the status of the appeal.

11The Registrar provided evidence that established that the appeal was dismissed on November 1, 2023. The Register also provided the Notice of Suspension of Driver’s Licence, dated February 6, 2024 (“Notice of Suspension”), which states that her son’s driver’s licence is suspended for a period of two years, nine months and five days, effective November 1, 2023. The Notice of Suspension was mailed to the driver and the appellant acknowledged that the mailing address was correct.

12The Register’s representative testified that the reason the Notice of Suspension was sent to the driver about three months after the dismissal of the appeal was that the Ministry of Attorney General and the Ministry of Transportation have administrative steps and procedures that both must follow. These administrative steps and procedures take time.

13Nonetheless, the Registrar’s representative stated that it is the driver’s responsibility to ensure that he has a valid licence.

14The appellant testified that, on March 8, 2024, the driver asked to borrow the vehicle as he wanted to use it to visit his son. When he arrived at her home to borrow the vehicle, she asked to see his physical driver’s licence card and he provide it to her for viewing. She testified that she reviewed it and noted that it was valid with an expiry date in July 2028.

15The appellant testified that the driver also showed her the Driver’s Licence Check Results from the Ministry of Transportation, dated January 24, 2024, January 7, 2024, November 26, 2023, November 10, 2023, November 5, 2023, November 4, 2023 (the “Licence Checks”). Each showed his driver’s licence status as valid. She viewed the Licence Checks on his cellphone.

16Notably, the driver did not provide or show the appellant any Licence Checks after February 6, 2024, which is the date of the Notice of Suspension. The appellant testified that she does not know why the Licence Checks stopped after January 24, 2024, and she did not ask him why he had not conducted a more recent check. Prior to lending him the vehicle, she did not have a conversation with him on whether he had received the outcome of his pending appeal.

17The appellant further testified that, on or about March 3, 2024, the driver had rented a U-Haul truck to remove his personal belongings from the home that he had shared with his ex-partner. She attended the rental company with her son and husband, but she did not see the rental company conduct a driver’s licence check.

18The appellant testified that the driver had called the police to his former home to ensure that everything went smoothly while he removed his belongings. A police officer asked to view the driver’s driver’s licence to validate his identity. She believes that if the licence was suspended then the police would have told the driver. She acknowledges that the police officer physically took the licence to his vehicle, but she is unsure if the officer conducted a licence check. She acknowledged that she did not see the police officer actually conduct a driver’s licence check.

19I find that the appellant was aware that the driver had been convicted of an impaired driving offence, and that he had an appeal pending. Despite having this knowledge, in my view, she did not take reasonable steps to ensure that his driver’s licence was valid when she lent the vehicle. She did not conduct her own search of the driver’s licence status of the driver on the Ministry of Transportation website. This was open to her to do, and given her knowledge of the pending appeal, this would have been a reasonable step.

20In addition, she made no queries of the driver as to why the latest Licence Check was January 24, 2024, more than a month prior to when she lent the vehicle. She also did not ask him to conduct a licence check prior to lending the vehicle. I find that a reasonable step would have been to ask him to provide a more recent licence check.

21I also find that her reliance upon the rental company and the police officer who viewed the driver’s licence is misplaced. The appellant did not see either conduct a driver’s licence check and neither advised that they had done so. She assumed that they had likely conducted a search.

22As 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.

23Given 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 her son’s 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

24The 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.

25Section 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.

26Subsection 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.

27If 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.

28If 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.

29The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

30The appellant testified that she and her spouse are retired and their adult daughter resides with them. She testified that the three of them share the impounded vehicle. She testified that she has spinal injuries, had a recent fall, and about four years ago had a knee replacement surgery and she continues to physically struggle. She provided diagnostic records from 2022 indicating, in part, degenerative changes, disc bulges and a compression fracture. She has an accessible parking permit that she utilizes and it can be moved from vehicle to vehicle. She testified that she needs the vehicle to attend her medical and physiotherapy appointments.

31Since the impoundment, she has been unable to attend her physiotherapy appointments. She also cancelled a doctor’s appointment for March 21, 2024.

32The appellant testified that she needs the vehicle to pick up groceries, attend physiotherapy and complete her essential tasks.

33I accept the appellant’s testimony that she has experienced difficulties and inconvenience since the impoundment of her vehicle. However, there is an additional vehicle in the home. The appellant testified that, on March 15, 2024, the driver transferred his 2013 Honda vehicle to her. She testified that the Honda vehicle is a sporty vehicle and is low to the ground making it difficult for her to get in and out. She would also need to have it insured.

34The appellant also acknowledges that she has gotten groceries since the impoundment by using a taxi. She also used a taxi to attend the location of where the vehicle was detained in order to be impounded. She further acknowledges that she has access to public transportation and her daughter has been using public transportation to attend her workplace.

35I find that the appellant has not established that there is no alternative to the impounded vehicle. On the contrary, she has used taxis, has access to public transportation, and has another vehicle registered in her name which can be insured and driven. Although taxis are costly, she has used them and they continue to be available to her. She is also able to use her accessible parking permit in different vehicles. There are alternatives available to her. I note that I may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

36I 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.

37Under 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

38Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.