Katelynn Arlidge v. Registrar of Motor Vehicles, 2024 CanLII 43441

Licence Appeal Tribunal File Number: 15837/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:

Katelynn Arlidge

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Katelynn Arlidge, Appellant

For the Respondent:

Sadia Ashraf, Program Advisor

Heard by Teleconference:

May 1, 2024

OVERVIEW

1Katelynn Arlidge (the “appellant”) appeals the impoundment of her 2017 Jeep Cherokee on April 8, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, her friend was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant appeals on the grounds that she exercised due diligence in determining that her friend’s driver’s licence was not suspended at the time it was detained, and that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

1. Did the appellant exercise due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained was not then under suspension under section 50.2(3)(c) of the HTA?

2. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the appellant has not established that she exercised due diligence in attempting to determine that her friend had a valid licence prior to the impoundment under section 50.2(3)(c) of the HTA. Further, she has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the HTA. As a result, I confirm the impoundment.

ANALYSIS

5The appellant’s vehicle was impounded pursuant to s. 55.1(1)1 of the HTA, because her friend was driving the vehicle while his licence was suspended.

6The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

7A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s.50.2(3)(c) and (d) as noted above.

The appellant did not exercise due diligence in determining that her friend’s licence was not under suspension at the time her vehicle was detained.

8To succeed on this ground of appeal, the appellant must show that she took reasonable steps to determine that her friend’s licence was not suspended prior to allowing him to drive the vehicle. Reasonableness does not require perfection. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver’s assertion that their licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

9The appellant testified that on the day of the impoundment she allowed her friend to drive her vehicle because she had consumed alcohol and did not want to drive impaired. She did not want to leave her vehicle at the side of the road because of the cost associated with it. Prior to allowing her friend to drive her vehicle, she asked him if he had a valid driver’s licence to which he confirmed that he did. She asked to see his driver’s licence and the friend advised her that he had lost his wallet and only had a picture of his licence on his phone. She viewed the picture of the licence and it appeared to be valid as the expiry date had not lapsed. Upon being pulled over police it was confirmed that the friend did not have a valid licence, which was supported by the evidence relied upon by the respondent. The appellant testified that had she known that her friend’s licence was not valid she would not have allowed him to drive her vehicle.

10The Tribunal has considered different steps an owner can take to determine whether they have exercised due diligence. Such steps may include, asking to see the driver's licence before allowing them to drive and doing a search on the Ministry of Transportation’s website. The steps necessary to establish due diligence may vary depending on the circumstances of each case, but the appellant must always establish that they took active steps, as opposed to making assumptions. The Tribunal has also consistently held that the owner’s obligation is to exercise due diligence at or near the time the vehicle is detained. This is consistent with the wording of the HTA.

11I find the appellant to be a credible witness and believe that she was not aware that her friend’s licence was suspended on the date the vehicle was impounded. Although I appreciate that the appellant was doing the right thing by not driving impaired, based on the facts before me I find that she did not exercise due diligence in determining that the friend had a valid licence before allowing him to drive her vehicle. Of significance, the appellant did not view a physical copy of the licence and made assumptions that it was valid after reviewing a photograph of it. I find the appellant’s testimony about viewing the picture of the licence vague and unclear as she could not provide the details on the picture of the licence she viewed that led her to believe that the licence was valid. Further, the photograph of the licence was not before me. As a result, the date the photo was taken is unclear and likely pre-dated the date of the impoundment. Because of this, I find that the appellant did not exercise due diligence in determining that the friend’s licence was valid prior to allowing him to drive her vehicle prior to the impoundment.

The impoundment of the vehicle will not result in exceptional hardship.

12Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the HTA. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle.

13Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option such as using another vehicle and making arrangements to manage without any motor vehicle during the impound period.

14Only if the appellant demonstrates that no alternative to the impounded vehicle is available to her, may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle.

15The appellant testified that the impounded vehicle is her only method of transportation, and she relies on it to carry out her daily activities. The appellant is currently living at her grandmother’s horse-riding farm in Baldwin, Ontario because her grandmother has been unwell. Baldwin does not have public transit and Uber does not service the area. The appellant testified that her grandmother has a vehicle which is not on the road because it needs a new transmission. Further, she does not have any friends and family members nearby who can assist with transportation.

16The appellant testified that prior to the impoundment she had been on a leave of absence from work following the tragic deaths of her boyfriend, nephew and best friend. She submits that the impoundment has caused her mental health to deteriorate because she has become isolated and cannot leave her home without a vehicle. In addition, her leave of absence ends on May 6, 2024, and she will have no way to get to work because her vehicle will not be released until May 23, 2024. Her workplace is a 30-minute drive from where she lives. She has inquired into renting a car during the impound period, however, this is unaffordable because it would cost over a thousand dollars. Further, a Taxi to the nearest town would cost $50 one way. Since she is on a leave of absence from work, she is receiving a reduced income and cannot afford these options.

17During cross-examination, the appellant conceded that she has been picked up by friends and family on weekends to obtain groceries and attend social events. Further, she has had the occasional use of her mother’s jeep, but this is unreliable because her mother works different hours and does not live close by. The appellant was also asked about whether or not she has sought out the support from her employer to see if she could get an extended leave of absence. She confirmed that her employer told her to wait for the outcome of this appeal and they could discuss next steps. The appellant confirmed that she had to reschedule a dentist appointment but otherwise neither herself nor her grandmother have missed any other medical appointments. Further, she has a three-month supply of medication.

18I find the appellant was honest and forthright in her testimony and believe that the impoundment has caused her significant stress in an already difficult time of her life. However, I find that although the alternative modes of transportation available to her are limited, there are alternatives to the impounded vehicle. She has used her mother’s jeep and has been picked up by friends and family on weekends to attend social events and obtain groceries. Further, the impoundment has not impacted her health and safety as she has not missed any medical appointments and has a three-month supply of medication. Although the impoundment has caused inconvenience, she has been able to manage without the impounded vehicle during the impound period.

19In addition, as of the date of the hearing the appellant had not missed any time off work. I also find the evidence regarding the impact of the impoundment on her employment or financial loss to be unclear. Based on the appellant’s testimony, it may be possible for her to work out an alternative arrangement with her employer as far as the timing of her return to work.

CONCLUSION

20For the above-noted reasons, I find the appellant did not exercise due diligence in determining that her friend’s licence was not under suspension at the time her vehicle was detained pursuant to s. 50.2(3)(c) of the HTA. Further, the appellant has not proven that the impoundment will result in exceptional hardship under the provisions of s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

21Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment.