Tefik Redenica v. Registrar of Motor Vehicles, 2025 CanLII 1833

Licence Appeal Tribunal File Number: 16523/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:

Tefik Redenica Appellant

and

Registrar of Motor Vehicles Respondent

AMENDED DECISION

ADJUDICATOR: Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant: Tefik Redencia Shkelzen Redenica, appearing for the appellant

For the Respondent: Sadia Ashraf, Agent

Heard: December 20, 2024

OVERVIEW

1The appellant, Tefik Redenica, appeals the 45-day impoundment of his 2015 Mercedes C300 under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

2The appellant's son, Shkelzen Redenica, served as an interpreter for his father at the hearing. This arrangement was approved pursuant to Rule 4.2 by the Licence Appeal Tribunal (the "Tribunal").

3The appellant's vehicle was impounded on November 27, 2024, after police found it being operated by his older son (not present at the hearing) while without an ignition interlock device, which was required by a condition on his driver's licence. This condition on his driver's licence stems from a conviction on October 9, 2019, for driving with more than 80mgs blood-alcohol content. As a result, his licence was suspended for a period ending on June 22, 2021. After serving that suspension, he was required to complete a remedial program, which he did, and was subject to a mandatory ignition interlock condition. Upon being enrolled in the ignition interlock program, he was also mailed a substance use form by the Ministry of Transportation (MTO) which he was to have completed by his medical practitioner. Since the form was never completed, he remained subject to the ignition interlock condition. At the time he was pulled over, the vehicle he was driving did not have an ignition interlock device installed despite it being a condition noted on his driver's licence.

4At the hearing, the appellant confirmed that his son was driving on the day of the impoundment but denied any knowledge that his son was subject to an ignition interlock condition. The appellant states that his son was also unaware of the ignition interlock condition. Although his son did not testify as a witness, the appellant advised that his son previously paid $1,200 which they both thought would clear his licence of any outstanding conditions.

5As a result of the impoundment and having a better understanding of the process, the appellant now does not dispute the respondent's record which shows that his son is required to have an ignition interlock as a condition imposed for a prescribed reason on his driver's licence under a conduct review program under section 57 of the Act.

6Subsection 55.1 of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the person who is driving a vehicle at the time of its detention was doing so in contravention of a condition imposed for a prescribed reason that prohibits them from driving a motor vehicle that is not equipped with an ignition interlock device. In this case, the appellant's son was driving a vehicle that did not have an ignition interlock device, which was a condition for him to drive a vehicle.

7As a result, police impounded the vehicle pursuant to s. 55.1(1)(1) of the Act.

ISSUE

8The appellant appeals the impoundment on two grounds:

i. That the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded did not have a condition prohibiting the driver from driving a motor vehicle without an ignition interlock device.

ii. That the impoundment will result in exceptional hardship, relying on s. 50.2(3)(d) of the Act.

9The onus of proof 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

10Having considered the parties' evidence and submissions, I 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.

11However, I accept the appellant's testimony that he genuinely believed his son's driver's licence was without the condition of an ignition interlock device. He was persuasive in convincing the Tribunal that his son, who lives with him, did not receive information regarding the ignition interlock program and the required next steps after the driving suspension was lifted.

12I therefore set aside the impoundment and order the release of the appellant's vehicle from impound.

ANALYSIS

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

13The 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.

14Section 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.

15The appellant argues that the impoundment will cause exceptional hardship since he depends on his vehicle to get to and from his medical appointments and to run errands. He testified that he has not missed any medical appointments and has been able to obtain his groceries, medication and other necessities as a result of temporarily renting a vehicle from a family member during the impoundment period. He has also been able to get rides from family and friends when necessary. He has taken a taxi in some instances, but he advised that it is cost-prohibitive. It is evident that the appellant has alternatives available to him which he has been accessing.

16The 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.

17For 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.

Has the appellant shown that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded did not have a condition requiring an ignition interlock device?

18The burden of proof is on the appellant to establish on the balance of probabilities, i.e., that it is more probable than not, that he exercised due diligence in attempting to determine if his son's driver's licence was free of any ignition interlock condition.

19Due diligence means taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances. Due diligence does not require perfection. Whether due diligence has been made out is highly fact-specific, and whether efforts are considered reasonable will depend on the circumstances.

20The appellant testified that he is aware of his son's driving history and prior suspension, however, he states that neither he nor his son were advised about the interlock ignition program. I took into consideration the fact that the appellant's son who was driving the car did not testify. Nonetheless, the appellant provided persuasive testimony which brought into question whether the respondent mailed the applicable information to the correct home address they were residing at the time.

21The appellant explained that he has always lived with his son and they appear to help each other. The appellant is not proficient in the English language, hence the need for his younger son to serve as a translator today.

22The respondent's agent stated that the driver was sent a letter on December 22, 2021, explaining what must be done to remove the ignition interlock requirement. The appellant testified that on or about this time, he and his son were in the process of moving. When the respondent was questioned about the specific mailing address the letter was sent, she could not confirm definitively where it was sent other than stating it was an address in Oshawa, Ontario. She explained this was all the information she could access from computer printouts. As such, the respondent was not able to confirm the specific mailing address the letter was sent.

23The appellant stated that they were not living in Oshawa on December 22, 2021, as he and his son had already moved by that time. Therefore, I find that it is possible that the driver did not receive the information which would advise and educate him on the condition and how it could be removed from his driver's licence.

24The appellant explained that as a result of the impoundment of the vehicle, he and his son now more clearly understand the ignition interlock device program and the fact that although the driver is able to operate a motor vehicle, it comes with conditions.

25The appellant was forthcoming at the hearing and stated that he loaned his car to his son in the past with no knowledge of the ignition interlock device program. He also received reassurance from his son that the suspension from his licence was lifted as he recently received a new driver's licence card. He was convinced by the fact that his son had paid all associated fines and completed the remedial program.

26I considered the respondent's submissions that the appellant did not check and examine the physical driver's licence card of his son. I again find that the appellant provided a plausible explanation that English is not his first language and he would not know what he would be looking for even if he closely examined the card. The appellant testified that he did in fact see the physical driver's licence card prior to his son taking the car. He also did his due diligence under the circumstances given his limited English skills to inquire with his son if his licence was valid and clear of any conditions. The appellant requested information and relied on the verbal reassurance of his son that he had a valid driver's licence.

27The documentary evidence provided by the respondent shows the appellant's son's driving licence status as "licenced" to drive, which accorded with the appellant's understanding, albeit he was unaware of the potential for and significance of an ignition interlock condition. I view this case as an honest error on the part of the appellant for whom English is not his first language which leaves him at a disadvantage and somewhat vulnerable. I also find that even if his son was aware of the requirement, the appellant exercised due diligence to verify whether his son was subject to conditions after his driver's licence was reinstated. In addition, I find the respondent lacked evidence that the letter dated December 22, 2021, was properly served. and this corroborated the appellant's evidence that the letter was not received.

28I find that the appellant exercised due diligence in attempting to determine that his son's driver's licence was not subject to any ignition interlock condition. In allowing his son to use his vehicle, he was under the impression there were no further conditions on his licence, he viewed the physical driver's licence card, and there is no evidence the respondent's letter was mailed to the correct home address of the driver.

ORDER

29For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I order the Registrar to release the appellant's vehicle from impoundment.