Licence Appeal Tribunal File Number: 15801/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 pursuant to Section 55.1 of the Act.
Between:
Nanci Guest
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Nanci Guest
For the Respondent:
Leila Pereira, Agent
Heard:
April 22, 2024
OVERVIEW
1The appellant, Nanci Guest, appeals the 45-day impoundment of her 2021 Mercedes GLE under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on April 7, 2024, after police found it being operated by her friend, P.D., who has an ignition interlock condition on his driver’s licence. The appellant’s vehicle is not equipped with such a device. Therefore, P.D. was in contravention of a condition prescribed under a conduct review program which he participated in from June 18, 2021, to April 18, 2024.
3Subsection 55.1(2) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the vehicle is being driven in contravention of a condition, imposed for certain reasons on the driver’s licence under a conduct review program, that prohibits the driver from driving a vehicle not equipped with an ignition interlock device.
ISSUE
4The appellant appeals the impoundment pursuant to s. 50.2(3)(d) on the grounds that the impoundment will result in exceptional hardship.
5The appellant also appeals under s. 50.2(3)(c) of the Act, submitting that she exercised due diligence in ensuring that the driver’s licence of the driver was not subject to an ignition interlock condition at the time the vehicle was impounded.
6The onus of proving these grounds of appeal rests with the appellant. To succeed in her appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.
RESULT
7Having considered the parties’ evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that she exercised due diligence in attempting to determine the driver’s licence of her friend was not subject to an ignition interlock condition at the time of the impoundment. I also find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship, as the appellant has reasonable alternatives to the impounded vehicle. I therefore dismiss the appeal and confirm the impoundment.
ANALYSIS
Has the appellant demonstrated due diligence?
8The Act does not provide a definition of due diligence. However, previous rulings of the Court and the Tribunal provide guidance as what constitutes due diligence for these purposes. For example, in Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ON LAT), the Tribunal found that due diligence applies to the actions the owner ought to take to meet the legal responsibility of ensuring their vehicle is operated by a licensed driver.
9In considering the extent of those actions, R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 (“R. v. Sault Ste. Marie”) describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.
10The Tribunal, in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT), found that the extent of inquiry and action to determine the validity of a licence may also depend on the nature of the relationship between the owner and the driver, as well as on the circumstances under which the driver is permitted to use the vehicle.
11To prove due diligence, the appellant must establish that she took reasonable care and undertook actions to determine that the driver was properly licensed. Reasonable care does not mean perfection and is considered in the context of the circumstances under which use of the vehicle is being permitted by its owner.
12It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that her friend and former farm employee (P.D.) was driving in Northern Ontario when they were stopped by police and the vehicle impounded. The respondent provided documentary evidence to show that P.D.’s driver’s licence was subject to an ignition interlock condition at the time the vehicle was detained for impoundment. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.
13The appellant testified that she asked P.D. to accompany her on the last leg of her driving journey back to Ontario from Vancouver, B.C. She states she was unfamiliar with the roads, particularly between Winnipeg to Thunder Bay. She purchased a plane ticket for P.D. to meet her in Winnipeg so he could accompany her and possibly assist with the drive home.
14The appellant was aware that P.D. had a condition on his driver’s licence for an ignition interlock device. She testified that she had knowledge of this since 2021 when he was working on her farm. She also saw the ignition interlock device in his work truck.
15The appellant also states she was aware that P.D. was eligible to have the device removed in 2023. She understood, however, that P.D. had previously chosen to not take the necessary steps to have it removed (i.e., completing medical forms and paying the fee).
16The appellant states that P.D. assured her that he would take the steps necessary to have the ignition interlock device removed as a condition so that he could legally help her drive her vehicle home from Winnipeg. She states that she spoke with P.D. after his doctor’s appointment on March 28, 2024, and was informed that his Substance Use Assessment form was signed and faxed to the Ministry of Transportation (“MTO”) by the physician’s receptionist.
17The appellant assumed that was the last step necessary to remove the condition requiring an ignition interlock device. In determining that P.D. was able to drive her vehicle the appellant relied entirely on the information provided by P.D. and the time estimation provided by the physician’s receptionist on MTO receiving the information and lifting the condition. She did not make her own inquiries and believed that the necessary steps had been taken to have the condition removed.
18I find the appellant’s actions fall well short of the appropriate due diligence. I find the appellant could have taken advantage of a number of different resources available to her which would easily and accurately confirm the driver’s licence status of P.D.
19The appellant confirmed during cross examination that she did not call the MTO, nor did she check their website to utilize their search/inquiry tool. The appellant also did not confirm with the doctor’s office that the necessary form had been completed nor did she ask the appellant to do so. The appellant submits that P.D. followed the necessary steps and the condition was not removed from his licence because of either the physician receptionist’s error of not faxing all pages or administrative delay. Essentially in making her decision to allow P.D. to drive her vehicle, the appellant was taking him on his word that the ignition interlock was no longer required.
20I accept the fact that the condition removal process may have been new to both P.D. and the appellant. The appellant did not, however, take reasonable steps to confirm that P.D. was able to drive a motor vehicle which is not equipped with an ignition interlock device.
21Based on the respondent’s evidence, I find that the MTO does provide information on their website with respect to timelines and what one may expect after submitting documentation for consideration.
22I find that P.D. and the appellant ought to have known that after submitting the necessary documents, they would be subject to some review and/or scrutiny. Simply submitting the documents did not enable P.D. to drive a vehicle without an ignition interlock device.
23The actions taken by the appellant to verify the driver’s licence of P.D. falls short of due diligence and more care should have been taken to ensure that he was legally allowed to drive her vehicle.
Has the appellant experienced exceptional hardship as a result of the impoundment?
24The test for exceptional hardship is set out in s. 10(1) of Ontario Regulation 631/98 (“Regulation”). To establish exceptional hardship, I must first determine that there is no reasonable alternative to the impounded vehicle.
25Section 10(4) of the Regulation provides that, in order to show that no alternative to the impounded vehicle is available,
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.
26The appellant did not offer any evidence to demonstrate, on a balance of probabilities, that she had no alternative to the impounded motor vehicle. In fact, the appellant testified that she has been able to rent a vehicle to maintain her work and personal schedule. She missed one day of work but otherwise has been able to reschedule certain appointments. There is nothing to indicate that the research she is engaged in at her school has been interrupted in any way. In the end, the appellant has been able to meet other obligations. She has been able to run her farm and obtain supplies during the period of impoundment. She has also been able to obtain groceries and necessities.
27While the loss of her vehicle is no doubt inconvenient, I find that the appellant does have reasonable alternatives and has taken advantage of them successfully. They have allowed her to continue her daily routine with no major disruption.
28The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives to the impounded vehicle, then an appeal on the basis of exceptional hardship cannot succeed.
For the reasons set out, I find that the appellant has failed to discharge the threshold burden of establishing on a balance of probabilities that there are no reasonable alternatives to the impounded vehicle. She therefore does not meet the test for “exceptional hardship” as set out in the Regulations under the Act.
ORDER
29For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: May 15, 2024