Licence Appeal Tribunal File Number: 15921/MVIA

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

Between:

Douglas Frank

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Douglas Frank, Self-Represented

For the Respondent:

Sadia Ashraf, Representative

HEARD: July 12, 2024

OVERVIEW

1The appellant, Douglas Frank, 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 2013 Chevrolet Cruze motor vehicle. The appellant’s motor vehicle was impounded on May 6, 2024. At the time it was detained in order to be impounded, Donald Stewart was driving the vehicle while his licence was suspended as a result of a Criminal Code conviction.

2The appellant appeals on the grounds that he 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.

i. 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 he 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 and Kelly Maser-Doig are the registered co-owners of the impounded vehicle, a 2013 Chevrolet Cruze motor vehicle (the “vehicle”);

ii. on May 6, 2024, the police discovered the vehicle being driven by Donald Stewart (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 he 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 his burden.

7This ground of appeal requires the vehicle owner to show on a balance of probabilities that he 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, he and Ms. Maser-Doig co-own the vehicle given the expense of operating a vehicle. He testified that they do not reside together and the vehicle is usually parked at the residence of Ms. Maser-Doig. He testified that he and Ms. Maser-Doig have known the driver for about 30 years, and they had assumed he had a valid driver’s licence. He testified that the driver had been performing some house maintenance on the residence shared by Ms. Maser-Doig and her mother. He testified that he was unaware that Ms. Maser-Doig had allowed the driver to borrow the vehicle to complete some errands at the time that it was detained in order to be impounded.

10He testified that, at no time, had he ever asked the driver if he had driving privileges, however, he had seen him drive other vehicles about a year prior. He testified that he had no reason to believe that the driver was unlicensed. He testified that Ms. Maser-Doig similarly did not make any inquires as to the licence status of the driver on the day she allowed him to borrow the vehicle, and this was the first time the driver had sought to borrow the vehicle. He believes that, at some point, the driver may have told Ms. Maser-Doig that he had a valid licence. However, I note that Ms. Maser-Doig did not testify at the hearing and I do not give any weight to the appellant’s assertion that the driver may have told Ms. Maser-Doig at some point that he had a licence.

11I find that the testimony of the appellant establishes that the appellant and Ms. Maser-Doig assumed that the driver had driving privileges, they made no inquires as to the licence status of the driver prior to allowing him to drive the vehicle, they did not ask to view the physical licence of the driver, and they did not check his licence status with the MTO or Service Ontario.

12In my view, the appellant and Ms. Maser-Doig did not take any steps to ensure that the licence was valid. Instead, they assumed the driver had a valid driver’s licence given that they had know him for a lengthy period of time, and the appellant had observed him drive about a year ago. This does not amount to due diligence.

13As noted above, this ground of appeal requires the vehicle owner to demonstrate the exercise of due diligence by showing that he 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 he did, and I find that he did not take reasonable steps. The appellant has therefore not met his 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 he has not met his 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.

21The appellant testified that he is a senior and he has a part-time job that he works two days a week. He testified that, since the impoundment, he has been commuting to his workplace by utilizing public transportation and Uber. It takes him about 20 minutes on public transportation to get to work. He has not missed any days of work or medical appointments. He has been able to obtain his groceries and prescriptions.

22The appellant further testified that, since the impoundment, Ms. Maser-Doig has been utilizing her mother’s vehicle as her mother lives with her and there were two vehicles in the household. He testified that she has an alternative vehicle available to her, and she has not missed any medical appointments, and has been able to obtain groceries and prescriptions.

23I accept the appellant’s testimony that he and Ms. Maser-Doig have been experiencing financial 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 he has the availability of public transportation and Uber to meet his transportation needs. While Ubers and public transportation may not be cost-effective, these alternative forms of transportation have been used by the appellant, and continue to be available to him to meet his personal and work commitments. There is also an alternative vehicle in the household available to Ms. Maser-Doig as she has been driving her mother’s vehicle.

24I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his 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.

25Under 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

26Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.