Robert Yurcich v. Registrar of Motor Vehicles, 2024 CanLII 88897

Licence Appeal Tribunal File Number: 16142/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:

Robert Yurcich Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant: Robert Yurcich

For the Respondent: Sadia Ashraf, Agent

Heard: August 16, 2024

OVERVIEW

1The appellant, Robert Yurcich, appeals the 45-day impoundment of his 2016 Jeep Wrangler 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 August 1, 2024, after police found it being operated by his friend, S.S., whose licence was under a Criminal Code suspension at the time.

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 driver's licence of the person who is driving a vehicle at the time of its detention is under suspension for certain Criminal Code offences. In this case, S.S.'s driver's licence was suspended indefinitely pursuant to sections 41 and 43 of the Act following a conviction for impaired driving on June 22, 2021.

ISSUE

4The appellant appeals under s. 50.2(3)(c) of the Act, submitting that he exercised due diligence in ensuring that the driver's licence of the driver was not under suspension at the time it was impounded.

5The appellant also appeals the impoundment pursuant to s. 50.2(3)(d) on the grounds that the impoundment will result in exceptional hardship.

6The onus of proving these grounds of appeal rests with the appellant. To succeed in his 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 he exercised due diligence in attempting to determine the driver's licence of his friend was not under suspension 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 he 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 his friend was driving when she was stopped by police and the vehicle impounded. The respondent provided documentary evidence to show that S.S.'s driver's licence was suspended indefinitely for ability impaired. This was the result of a Criminal Code conviction of impaired driving on June 22, 2021. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.

13The appellant testified that he saw S.S.'s driver's licence prior to the impoundment on another occasion in which she had asked to borrow the vehicle. He states that at that time, he saw a physical card and stated that she was in the process of changing the address noted on the licence. He does not recall viewing the expiry date on the card. The respondent submits that given the timelines and the fact she is has been suspended/cancelled/unlicensed for some time, the physical card S.S. would have produced would likely have been expired. Furthermore, the appellant did not ask to view S.S.'s driver's licence on her most recent request to borrow the vehicle and he took for granted that she was properly licenced. This despite the fact that she should have been issued an updated licence with her most recent address.

14The appellant did not take any other steps to determine if S.S. was properly licenced to drive his vehicle. He testified that he did not call the Ministry of Transportation (MTO) nor did he check the MTO licence checker which is available online. He stated that given this experience, he will do so in the future.

15At the hearing, the appellant stated that he has only known S.S. for 2-3 months. Given that his association with her is relatively new, greater care should have been taken since he would not necessarily have information on her previous driving record, especially dating back to 2021 when she was convicted of impaired driving.

16I find that the actions taken by the appellant to verify the driver's licence of S.S. fall short of due diligence and more care should have been taken to ensure that she was legally allowed to drive his vehicle.

Has the appellant experienced exceptional hardship as a result of the impoundment?

17The 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.

18Section 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.

19The appellant did not offer any evidence to demonstrate, on a balance of probabilities, that he had no alternative to the impounded motor vehicle. In fact, the appellant testified that he has been able to attend work, as well as transport his tools to job sites. He also testified that in some situations, he has been able to store his tools at worksites which is even more convenient.

20The appellant is a single father with a 12-year-old child. She attends a relative's house 1-2 times per week. The appellant also stated that she has medical appointments from time to time. There was no evidence to indicate that she has missed any appointments or that her routine of visiting the relative's house has been significantly disrupted. In addition, the appellant himself has not missed any medical appointments.

21The appellant testified that he has been able to obtain groceries for him and his daughter during the period of impoundment. He also stated that he is able to get rides on occasion and also has access to use Uber or taxi if necessary. This is no doubt a more expensive means, however, the appellant appears to have been managing to use these alternate arrangements, which will only be necessary until his vehicle is returned.

22The respondent argued that there is a pharmacy accessible to both the appellant and his daughter should they require prescriptions to be filled. The appellant's community also has 911 services available.

23While the loss of his vehicle is no doubt inconvenient, I find that the appellant does have reasonable alternatives and has taken advantage of them successfully. They have allowed him to continue his daily routine with no major disruption.

24The 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.

25For 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. He therefore does not meet the test for "exceptional hardship" as set out in the Regulations under the Act.

ORDER

26For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I confirm the impoundment order.