Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15869/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 under section 55.1 of the Act

Between:

Enterprise Rent-A-Car Canada Company Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

PANEL : Avril A. Farlam, Vice-Chair Hande Bilhan, Member

APPEARANCES:

For the Appellant: Neil Kuprowski, Appellant’s Employee For the Respondent: Sadia Ashraf, Representative

HEARD: May 16, 2024

OVERVIEW

1Enterprise Rent-A-Car Canada Company, the appellant, appealed from the impoundment of its 2023 Ford Explorer (the “vehicle”), on April 21, 2024 for 180 days. At the time it was impounded, the appellant’s vehicle had been stopped by the police and Tamara Johnson (the “driver”), was driving it in contravention of a condition that prohibits her from driving a motor vehicle that is not equipped with an ignition interlock device.

2This impoundment is for 180 days because it is the appellant’s fourth impoundment in the last two years within the meaning of s. 55.1 (3) 3. of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”)

3The appellant clarified at the hearing through its representative Neil Kuprowski that it appeals on the basis that the impoundment will result in exceptional hardship because the impoundment costs are very difficult for it and it needs the vehicle to rent out in its business. The Notice of Appeal indicates that the appellant was unaware of the condition on the driver’s licence at the time it rented the vehicle to her and would not have rented to her if it had known about the ignition interlock condition.

ISSUE

4The issue in dispute is:

Issue 1: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of Ontario Regulation 631/98 (“Regulation”)?

result

5We find that the impoundment will not result in exceptional hardship.

ANALYSIS

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the HTA may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (b.1), (c) and (d) of the HTA. Specifically, the appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

8Paragraph 2 of subsection 55.1(1) provides for impoundment of a vehicle when it is being driven by a person in contravention of a condition on his or her driver’s licence under a conduct review under s. 57 that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.

Issue 1: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

9We find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

10Section 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. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…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.

11Only if the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), must I consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

12We can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle.

13We find that the appellant has not established that there is no alternative to the impounded vehicle.

14Neil Kuprowski, an employee of the appellant testified that the impoundment will cause exceptional hardship to it because it needs to use the vehicle in its vehicle rental business. However, Mr. Kuprowski testified that the appellant has many other vehicles it owns, including other sport utility vehicles which the vehicle is, that are available to it to continue with its rental business.

15Mr. Kuprowski also testified that the impound fees will be a financial hardship to the appellant because the impoundment of the vehicle is for 180 days.

16We may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

17Here Mr. Kuprowski in his testimony made it clear that the appellant has many other vehicles to rent out in its business, including sport utility vehicles.

18We find that the appellant has alternatives to the impounded vehicle available during the impoundment period.

19As a result, we have not considered financial loss.

Notice of Appeal

20Even though Mr. Kuprowski confirmed at the hearing that the appellant did not rely on any other ground of appeal other than exceptional hardship, we have considered that the appellant in its Notice of Appeal raised that it was unaware of the ignition interlock condition on the driver’s licence of the driver and would not have rented to her if it had known.

21Mr. Kuprowski admitted that the appellant did not do any on-line search to check the validity of the driver’s licence of the driver or take any other steps to ensure that there was no condition on the driver’s licence before renting the vehicle to the driver.

22Mr. Kuprowski testified that an employee of the appellant looked at her driver’s licence card but did not make a note of the “I” condition which would have appeared on the front of the driver’s licence or the notation of interlock ignition device on the reverse of the driver’s licence card. Mr. Kuprowski testified that the appellant does not keep a copy of the driver’s licence of rental customers and had no document to prove that, as he suggested, perhaps the “I” was not on the front of her driver’s licence card and the notation about ignition interlock device was not on the reverse of the driver’s licence card.

23Mr. Kuprowski also testified that the appellant did not know about the condition and that in his post-impoundment discussions with the police, he found that they were not familiar with it either and could not explain to him where to find “I” and the notation of ignition interlock device on the reverse of driver’s licence card. No police officer testified to confirm Mr. Kuprowski’s suggestion and we find it unreliable given the records of the ignition interlock filed by the Registrar.

24We find that the testimony and documents put forward by the appellant through Mr. Kuprowski does not establish any due diligence ground of appeal, even if the appellant had raised it at the hearing. Mr. Kuprowski admitted that the appellant did not take any steps which would amount to due diligence before renting the vehicle to the driver other than looking at her driver’s licence card and failing to note the condition noted in writing on it. This is especially concerning because the evidence of the Registrar was that one of the previous impoundments in the last two years arose because the appellant rented a vehicle to a rental customer whose driver’s licence was subject to a condition on their driver’s licence.

25Here, not only did the appellant fail to accurately check the driver’s licence card shown to them, and to record it, but also failed to take any steps by searching on line or in any other search, to verify that the driver’s licence card was accurate and genuine and was in accordance with the Ministry of Transportation records about the driver’s licence of the driver. This is so even though the appellant had encountered this at least once before which resulted in a previous impoundment of its rental vehicle.

26The appellant, who is in the business of renting vehicles, is required to do more than it did to ensure that the driver had a driver’s licence which allowed her to drive the vehicle before allowing her to drive it.

27The evidence put forward by the appellant fails to establish that it exercised due diligence in attempting to determine the status and validity of the driver’s licence of the driver. This is consistent with Mr. Kuprowski’s submission at the hearing that the appellant appeals on the ground of exceptional hardship, not due diligence.

Conclusion

28We find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation. The appellant has alternatives to the impounded vehicle.

ORDER

29Pursuant to subsection 50.2(5) of the HTA, we confirm the impoundment of the appellant’s vehicle.