Licence Appeal Tribunal File Number: 16597/MVIA

In the matter of an appeal from an impoundment of a motor vehicle pursuant to section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), under section 50.2 of the Act.

Between:

Samantha White

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Samantha White (self-represented)

For the Respondent:

Leila Pereira, Agent of the Registrar

Heard by teleconference:

January 24, 2025

OVERVIEW

1Samantha White, the appellant, appeals from the impoundment of her 2018 Mercedes C300 on January 12, 2025, for 45 days under section 55.1 of the Act.

2The owner of a motor vehicle that has been impounded in accordance with section 55.1 may, under the provisions of section 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 subsection 50.2(3) of the Act. The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was detained for impoundment was not then under suspension, and that the impoundment will result in exceptional hardship, pursuant to subsections 50.2(3)(c) and (d) of the Act, respectively.

4The appellant filed a Notice of Appeal with the Tribunal on January 14, 2025.

ISSUES

5The issues to be determined are:

i. Whether the appellant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was detained for impoundment, was not then under suspension; and

ii. Whether the impoundment will result in exceptional hardship.

RESULT

6The appellant did not exercise due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was detained, was not then under suspension. The impoundment will not result in exceptional hardship. The impoundment is confirmed.

ANALYSIS

Due Diligence

7I find that the appellant did not exercise due diligence in attempting to determine if the licence of the driver, to whom she lent her vehicle, was not then under suspension. In other words, she did not exercise due diligence in attempting to determine that the driver had driving privileges before she lent him the vehicle.

8The legal threshold to meet for s. 50.2(3)(c) of the Act on due diligence grounds is whether the appellant took reasonable care to determine if the driver’s licence was valid and not under suspension.

Standard for due diligence

9The Act does not define due diligence for these purposes. However, previous rulings of the Court and the Tribunal provide guidance as to what constitutes due diligence in this case. 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.

10In considering the extent of those actions, the Supreme Court of Canada, in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.

11The 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 vehicle owner and the driver, as well as on the circumstances under which the driver is permitted to use the vehicle.

12To prove due diligence, the appellant must therefore establish, on a balance of probabilities, that she 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.

13The appellant testified that she lent her vehicle to Levont Ireland (the “Driver”), a friend that she had known for a few months, and he told her he had a valid driver’s licence. She testified that she did not ask to see the Driver’s physical licence card prior to lending him the vehicle. She stated that he only assured her, verbally, that he had a valid licence.

14The appellant testified that she did not take any other steps to confirm the validity of the Driver’s driving credentials, for example inquiring to Service Ontario or using the licence search tool on the Ontario Ministry of Transportation (“MTO”) website.

15The respondent submits that the appellant took no steps to verify the status of the Driver’s driving privileges and was only told verbally that he had a valid licence. The respondent submits that the appellant did not take reasonable steps and actions to determine that the Driver was properly licensed before being permitted to drive her vehicle.

16I find the appellant did not take reasonable steps or make inquiries that a reasonable person would, to confirm that the Driver had driving credentials. She had known him only a few months. She essentially took, on faith, that the Driver was telling her the truth. I understand the reluctance a person might have in asking for proof of licence, even from a recent friend. However, as the vehicle owner, the appellant should have taken actions to ensure that the person she was permitting to operate her vehicle was licensed.

17As noted above, to have the vehicle ordered released on the due diligence ground, the appellant must demonstrate the steps and actions she took to ensure the driver of her vehicle was suitably licensed. In this case, she demonstrated no actions to confirm what the Driver told her verbally.

18I find that the appellant did not exercise due diligence in attempting to determine that the Driver’s licence was valid and not under suspension when she permitted him to drive her vehicle.

Exceptional Hardship

19I find the impoundment will not result in exceptional hardship.

20Ontario 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.

i. Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle. Only 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.

ii. Further, in determining if the exceptional hardship test has been met, I may only consider other consequences of the impoundment such as financial or economic loss, or loss of employment or education, 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.

iii. In order to establish that there is no alternative, section 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.

Alternatives to the impounded vehicle

21The appellant testified that she is a single mother and needs the impounded vehicle to transport her five-year-old daughter to and from her school, and after-school daycare located at the same site, Monday to Friday between 9 am and 6 pm. Since the impoundment, the appellant has been walking her daughter to and from school (about 10 minutes walk from home), using Uber, or the help of her neighbour to get her daughter to and from school/daycare.

22The appellant testified that she works as a cosmetologist, primarily doing eyelash extensions for her clients, five to six days per week, between 9 am and 6 pm. She works at a salon in nearby Pickering most Thursdays and Fridays. The rest of her work week is divided with approximately 60% of her clients being served at her home salon, and 40% at clients’ homes (house-calls). She testified that she needs her vehicle to get to and from work at her clients’ homes and the salon, two days per week.

23The appellant testified that she lives in an urban, residential area of Oshawa and that transit services are available within a 10-minute walk from home. She testified that although transit is available, it is impractical. She stated that it is “hard to take the bus, takes longer” and the time constraints of work and taking her daughter to and from school make transit a difficult alternative.

24The appellant testified that she has used Uber as an alternative, but she finds it too expensive for her limited income. She looked into a rental car but found it unaffordable considering that she may already be responsible for $60.00 per day in impoundment fees.

25The appellant testified that she has no other vehicle at her disposal. She testified that she is a registered owner, or joint owner, of a Lexus that is the sole vehicle of her ex-spouse who lives in Pickering. She testified that she cannot rely on him to assist with either her or her daughter’s transportation needs while her Mercedes is impounded.

26The appellant testified that she uses delivery services for most of her household needs (groceries, supplies) and Uber, walking, or relying on friends to get pharmaceutical and supplies for which there are no delivery services available. The closest retail services are 1.5 kms or approximately 20 minutes walk from home.

27The appellant testified that she has not missed any appointments with her physician and has none scheduled, but she has an upcoming dental appointment (prior to the release of the vehicle) for a filling that she does not want to reschedule due to the pain the tooth is causing.

28The appellant seeks an order from the Tribunal to release the vehicle on the ground that the impoundment will result in exceptional hardship.

29The respondent submits that the appellant has alternatives to the impounded vehicle and therefore it is not causing exceptional hardship. It adds that she has been able to get the assistance of friends, walk, or use Uber as an alternative to the impounded vehicle.

30The respondent submits that transit services are available to the appellant to get to/from the salon for work, or for accessing other retail services. It submits that although the appellant finds transit services to be inconvenient, that does not discount them being available to her as an alternative.

31The respondent seeks confirmation of the impoundment.

32I find the impoundment will not result in exceptional hardship because the appellant has reasonable alternatives.

33In this case, the appellant has the reasonable option of walking her daughter to and from school and when walking is not suitable, she has been able to rely on Uber and the occasional help of friends and neighbours as alternatives to the impounded vehicle. She can access delivery services for most of her household needs. She can sustain most of her self employment income by working from home and using transit or Uber to attend the salon two days per week. I agree with the respondent that although the appellant finds transit to be inconvenient, it is, none-the-less, available to her, a short walk from home. It is a reasonable alternative to the impounded vehicle.

34I find the impoundment will not result in exceptional hardship because the appellant has several reasonable alternatives to the impounded vehicle available to her. I find the appellant’s circumstances do not meet the threshold of exceptional hardship as defined in section 10 of the Regulation.

Conclusions

35The appellant did not exercise due diligence, pursuant to subsection 50.2(3)(c) of the Act, in attempting to determine that the Driver’s licence was not then under suspension, and the impoundment will not result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

ORDER

36Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.