Patricia M. Skrypnyk v. Registrar of Motor Vehicles, 2024 CanLII 49039

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 15838/MVIA

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

Between:

Patricia M. Skrypnyk

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Patricia M. Skrypnyk, Self-Represented

For the Respondent: Leila Pereira, Representative

LAT Observer: Hande Bilhan

HEARD: May 9, 2024

OVERVIEW

1The appellant, Patricia M. Skrypnyk, 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 2017 Honda motor vehicle. The appellant’s motor vehicle was impounded on April 22, 2024. At the time it was detained in order to be impounded, her partner Eric Cain was driving the vehicle while his licence was suspended as a result of a Criminal Code conviction.

2The appellant appeals on the grounds that she exercised due diligence and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

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

RESULT

4I 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

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2017 Honda motor vehicle (the “vehicle”);

ii. on April 22, 2024, the police discovered the vehicle being driven by Eric Cain (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

6The 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.

7This 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.

8I 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.

9The appellant testified that she understood that the driver had outstanding fines that he needed to pay before he could obtain his driving privileges back. Thus, initially when they began dating, she had not allowed him to drive the vehicle. However, in about August/September 2023, he told her that he was attending Service Ontario to pay his outstanding fines so that his driving privileges would be reinstated. She testified that he called her on his alleged way to Service Ontario. She testified that she trusted him and believed him when he told her that the fines had been paid, and he was now permitted to drive. Thus, she allowed him to drive the vehicle in the end of 2023 through 2024, approximately four to six times, and until the day the vehicle was detained in order to be impounded.

10The appellant testified that she did not know the driver had misled her about the reinstatement of his driving privileges, and it did not occur to her that he would do so. The driver provided a letter acknowledging that he misled the appellant regarding his licence reinstatement.

11The appellant testified that she did not ask the driver for his physical licence prior to allowing him to drive the vehicle. She had, however, seen the physical driver’s licence in his wallet at some point. Sometime around Christmas 2024, he had also shown her a picture of his driver’s licence on his phone. Nonetheless, she acknowledges that on the day the vehicle was detained, she had not asked to inspect/view the driver’s physical license, she did not call the MTO to check the validity of his licence or, check the MTO website for the licence status. She also did not ask to view the notice of reinstatement of the driver’s licence. I find that these are all reasonable steps that the appellant could have taken but did not.

12In my view, the appellant did not take any steps to ensure that his driver’s licence was valid when she lent the vehicle to the driver. Instead, she relied upon the driver’s assertion that his driving privileges were reinstated. She did not ask to inspect the physical driver’s licence, conduct a search of the driver’s licence status of the driver on the MTO website, or ask to view the notice of reinstatement of his licence. These steps/options were open to her to do, and these would have amounted to due diligence.

13As 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.

14Given 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 the driver’s driving privileges were not suspended at the time the vehicle was detained in order to be impounded.

Whether the impoundment will result in exceptional hardship

15The 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.

16Section 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.

17Subsection 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.

18If 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.

19If 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.

20The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship. The appellant testified that she needs the vehicle to attend medical appointments and other commitments for her mother, grandmother and herself, attend work commitments, and complete her essential tasks.

21The appellant testified that, since the impoundment, she has missed two Narcotics Anonymous meetings and about five days of work commitments when she was unable to arrange alternative transportation. She testified that she is self-employed under “Patricia Skrypnyk Designs” and sets her own hours. She testified that she primarily works from home and has been, for the most part, able to continue to work from home. However, she also provides home staging services for a real estate agent for listed houses. Her task is to pick up items from a storage locker and stage homes, and to return the items to the storage locker once they are no longer needed. The items that she is transporting can be large and she is unable to use public transportation to meet these work commitments. She testified that she worked hard to obtain this staging work, and while she has other work, this work is more lucrative and she fears she will lose this employment opportunity without the vehicle.

22The appellant testified that her mother and elderly grandmother rely upon her to take them to their doctor’s appointments and the impoundment has affected them and required the rescheduling of some medical appointments. Her mother does not drive and she has been her mother’s primary driver since she was 18 years old. Her mother provided a letter stating that the appellant is her main source of transportation.

23The appellant testified that other family members work and cannot drive her mother and grandmother around. She is self-employed as an entrepreneur and has more time flexibility. She has had to cancel/reschedule doctor’s appointments for her mother, grandmother and herself. However, she also testified that she was able to make alternative arrangements for an eye appointment for her grandmother on day of the hearing. She was supposed to drive her grandmother to the eye doctor’s appointment, but she asked her cousin to do so, and she did.

24During the impoundment period, while her sister was visiting her and her mother, she ordered Ubers including to pick her sister up from the train station and take back to the train station upon completion of the visit. She also ordered Ubers to attend and return back from a store where they attended to register for a baby registry for her sister. She also used Uber to attend her mother’s friend’s home and back. When her sister wanted to meet with her past professor, the appellant ordered her an Uber to take her to the meeting. She testified that she paid for the Ubers as her sister has a high-risk pregnancy and she had committed to being the driver for the visit. She testified that they did miss some planned activities.

25The appellant testified that she cannot afford all the Ubers that she has been using, the impoundment fees and repair costs for the vehicle.

26The appellant has also been using Instacart to have groceries delivered to her mother, grandmother and herself. She has had her pharmacy deliver her prescriptions to her residence. She acknowledges that she could use public transportation to obtain groceries and prescriptions.

27I accept the appellant’s testimony that she has experienced difficulties and inconvenience since the impoundment of the vehicle. However, I find that the appellant has not established that there is no alternative to the impounded vehicle. I note that she has the availability of public transportation and she has been utilizing Ubers to meet her transportation needs. While Ubers are not cost-effective, this alternative form of transportation has been used by the appellant on multiple occasions and continues to be available to her to meet her personal and work commitments. There are alternatives available to her. I note that I may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

28The appellant also acknowledges that she has gotten groceries delivered to her, her mother and grandmother via Instacart. She has had her prescriptions delivered. She and her family members have rescheduled appointments to after the impoundment period. Her cousin has also taken her grandmother to an eye doctor’s appointment.

29I 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.

30Under 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

31Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.