OVERVIEW
1Alexandra Chute (the “appellant”) appeals the impoundment of her 2016 Hyundai Tucson on January 1, 2025, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c.H.8 (the “Act”).
2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.
3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2(3) of the Act. The appellant appeals on the grounds that she exercised due diligence in accordance with s. 50.2(3)(c) of the Act and that the impoundment will result in exceptional hardship in accordance with s. 50.2(3)(d) of the Act.
ISSUES
4The issues in dispute are:
i. Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the Act.
ii. Will the impoundment result in exceptional hardship?
RESULT
5I find the appellant has not established that she exercised due diligence in accordance with s. 50.2(3)(c) of the Act. I further find that the impoundment will not result in exceptional hardship under s. 50.2(3)(d) of the Act. The Registrar’s impoundment of the vehicle is confirmed.
ANALYSIS
Circumstances leading to the impoundment
6Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was under suspension for certain Criminal Code convictions, the officer must detain and impound the vehicle.
7At the time the appellant’s vehicle was detained, it was being driven by Alexander Glen Greystock-Wood, a friend of the appellant. The respondent presented unrefuted evidence that the driver’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained. Mr. Greystock-Wood driver’s licence status on January 1, 2025 was suspended, cancelled, unlicenced and unrenewable. Accordingly, the vehicle was lawfully impounded.
Whether the appellant exercised due diligence in accordance with the Act
8The 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.
9This 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 as to 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.
10I 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 impounded.
11The appellant testified that she did not give permission to Mr. Greystock-Wood to use her vehicle, although there was no claim of the vehicle being stolen. She had asked him to housesit on New Year’s Eve to ensure the animals were cared for and the wood stove kept burning as it was the heat source for the home and her landlord was also away. Someone gave Mr. Greystock-Wood a car ride to her home and she expected him to stay for the night as per their arrangements. The appellant left her car at home and her keys out in their usual spot as she was going to celebrate New Year’s Eve with friends who picked her up as her parents were looking after her children for the night. The next thing she knew the car was being impounded.
12The appellant explained that she had seen Mr. Greystock-Wood drive his own truck before on several occasion and that he told her he had a driver’s licence. They also discussed drinking and driving, and he said he would never do that.
13The appellant testified that she did not take steps to verify that Mr. Greystock-Wood had a valid driver’s licence and took him at his word.
14The respondent argued that the appellant did not do her due diligence to ensure Mr. Greystock-Wood had a licence as she did not ask to see his licence, that she failed to tell him not to use her car or put her keys where he could not access them.
15I find that the testimony of the appellant establishes that she took no steps to determine that the driver’s licence of the driver was not under suspension. She assumed that the driver had driving privileges since she saw him drive what she assumed was his own truck. I also agree with the appellant that there is no other reason for Mr. Greystock-Wood to have been at the home except to care for the animals and the wood stove, and it is therefore improbable that she would have told him he could leave with her car while she was out. That said, the appellant left her home in circumstances where Mr. Greystock-Wood had access to her vehicle and when she knew that he might drive. In those circumstances due diligence required her to either instruct Mr. Greystrock-Wood that he was not permitted to drive the vehicle or take some steps to ensure that he was licensed to drive. She did not do these things.
16Given 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 licence was not suspended at the time the vehicle was impounded.
Exceptional Hardship
17I find the impoundment will not result in exceptional hardship.
18Ontario Regulation 631/98 (the “Regulation”), under the Act, sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
19Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle.
20Only if there is no alternative may I consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or 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.
21Further, I may only consider other consequences of the impoundment such as financial or economic loss, or loss of employment or education in determining whether the exceptional hardship test has been met, if the owner demonstrates not only that no alternative to the impounded vehicle is available, but also that the loss will be immediate, significant and lasting, will be upon a person ordinarily transported by the vehicle, and that the impact of the loss will be upon someone other than the suspended driver.
22In order to establish that there is no alternative, s. 10(4) of the Regulation requires the owner of the impounded vehicle to demonstrate that every reasonable option has been explored and inquired into, including using another vehicle or arranging to be without any vehicle.
23The appellant testified that she has two young children that need to be driven to daycare and that she needs her car to work. She works out of two different locations every workday, and although her employer accommodated her for today, this is the fourth day that she missed work. Not having access to her car has been very difficult as she has had to carpool and relied on her mother and cousin for transportation. Although her parents own two cars, they will be away for two weeks in the near future so her mother will not be able to lend her a car during that period.
24The appellant also testified that there is no direct bus route to her work and that she cannot afford a taxi and needs car seats. While some of her work can be done remotely, most needs to be done in person. Her children have also been impacted as she missed a vaccination appointment for her 18-month-old and her other child has a specialist appointment on February 12th. She has not looked into rescheduling these appointments.
25The appellant further testified that Mr. Greystock-Wood offered to pay the impound fee, but his car was unavailable to her as it was in the shop.
26The respondent submits the appellant does not meet the criteria for exceptional hardship and seeks confirmation of the impoundment. The respondent submitted the appellant has other methods of transportation available to her as she has rented a vehicle and used Uber.
27I find the appellant has not met her burden in demonstrating exceptional hardship.
28I find the appellant has not demonstrated that there are no other alternatives to transportation available. While it has been inconvenient, she has managed to carpool and ask family for help with transportation and inconvenience is not a factor which the Tribunal can take into consideration.
29Based on the evidence the appellant does not appear to risk losing her employment. While she has missed a vaccine appointment for her child, she did not demonstrate efforts made at rescheduling medical appointments. She has not demonstrated a threat to the health and safety of herself or her family as a result of the impoundment.
30Although there are negative financial consequences to using taxis or renting a car, and the lack of direct bus routes can make commuting more challenging, the evidence did not demonstrate that these rise to the level of exceptional hardship. This is a temporary financial hardship and a significant inconvenience but the appellant has not demonstrated on a balance of probabilities that accessing alternate transportation options amount to exceptional hardship. In addition, since Mr. Greystock-Wood has offered to pay for the impoundment, the financial impact to the appellant is reduced.
CONCLUSION
31I agree with the Registrar. The appellant did not exercise due diligence under the Act to determine that the driver’s licence was not suspended at the time the vehicle was impounded. Also, she has reasonable alternatives to the vehicle during the period of impoundment. As such, the appellant has failed to satisfy the Tribunal on a balance of probabilities that she meets the test for exceptional hardship, as set out in the Regulation as she has reasonable alternatives available to her.
ORDER
32For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
Released: January 30, 2025
Geneviève Painchaud
Vice-Chair