Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-03-09
FILE:
7225/MVIA
CASE NAME:
Hayer & Doughter Freight System Inc. v. Registrar of Motor Vehicles
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to section 55.1(3) of the Act
Hayer & Doughter Freight System Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Jane Weary, Vice-Chair
APPEARANCES:
For the Applicant:
Lakhdeep (Lucky) Kaur, Agent representing the Applicant
For the Respondent:
Frances Ilari, Agent representing the Registrar of Motor Vehicles
Heard in Toronto:
February 29, 2012
REASONS FOR DECISION
A hearing was held on February 29, 2012, at Toronto, Ontario, in person, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days as stipulated in the Notice of Impoundment filed as Exhibit #1.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 1998 International 910 (the “vehicle”)
Date of Appeal: February 15, 2012
There were no preliminary matters in dispute between the parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3) (c) and (d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time in respect of which the vehicle was detained in order to be impounded was not then under suspension?
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
Ms. Kaur advised that the Applicant keeps eight trucks, which it uses for customer supply and transport needs, in a vehicle storage yard run by an independent outfit. The suspended driver had worked for the Applicant some years previously, but had been let go and had no legitimate basis for driving the vehicle at the time of the impoundment. The Applicant had decided not to lay theft charges against the driver after it had received requests not to do so from that driver’s wife.
The Applicant stores its trucks at the yard with the keys left in them ready for its employee drivers to access as needed on a rotating basis. The suspended driver obviously knew this and was able to access the vehicle and drive it off the lot on the day in question. The Applicant acknowledged it had concerns with the security of the yard prior to the impoundment as a number of its vehicles had been vandalized. It further conceded that there were no requirements made of drivers to establish identity or authority before entering the yard or removing vehicles. No identity cards are issued nor is employee authorization information provided to security personnel at the yard. The owner of the Applicant is currently considering leasing a storage yard where some controls of this nature might be implemented.
In the interim, a number of its drivers have independently taken to hiding keys for the truck in the interior of the cab only relaying the location of the keys to the next driver requiring access when necessary.
The Applicant advised that it performs driving record and criminal record searches of any employee prior to employing him or her as a driver. It then performs annual updates on the employees’ driving records.
Seven other trucks are currently in operation. A further twelve trucks are available for use by owner-operators attached to them. Currently five drivers are employed full-time; the sixth driver, primarily responsible for operating the impounded vehicle, has received a number of shifts since the impoundment and intends to return at its end. He currently has undertaken other part-time work to supplement his income.
The Applicant owner considered renting a replacement truck for use during the impoundment but determined this was not economically worthwhile.
The Applicant has advised the suspended driver’s family that its costs from the impoundment will be sought from him.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail or Refuse to Provide Breath or Blood Sample under the Criminal Code of Canada as a result of which the driver’s licence of the driver remains under suspension until July, 2012.
The Registrar did not call any witnesses.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
The Applicant here appeals on the basis of sections 50.2(3) (c) and (d).
ISSUE Should the Tribunal order the Registrar to release the motor vehicle on the basis that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time in respect of which the vehicle was detained in order to be impounded was not then under suspension?
The Shorter Oxford Dictionary, 3rd ed. provides the definition of “due diligence” as follows:
Due: A. adj. 1. That is owing or payable, as a debt. 2. Belonging or falling to by right. 3. That ought to be given or rendered; merited. 4. Such as ought to be; fitting; proper; rightful. 5. Such as is requisite or necessary; adequate. 6. To be ascribed or attributed; owing to, caused by, in consequence of. 7. Under engagement or contract to be ready or arrive (at a defined time).
Diligence: 1. The quality of being diligent; industry, assiduity. 2. Speed, dispatch. 3. Careful attention, heedfulness, caution. 4. Law. The attention and care due from a person in a given situation....
Also, “due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is defined as follows:
Due diligence: Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
ISSUE Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
The Shorter Oxford English Dictionary, 3rd ed., defines “exceptional hardship” as follows:
Exceptional: Of the nature of or forming an exception; unusual.
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:
(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then 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 public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that:
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle, and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
As to the first issue, the evidence failed to establish reasonable grounds to conclude that the Applicant exercised the requisite due diligence as contemplated in the legislation. Rather, the Applicant continued to allow uncontrolled access to its vehicles not merely by drivers whose employment had been terminated with or without cause, but indeed to any individual who might enter the storage yard.
This lack of prudence and control has continued to exist despite incidents of prior damage to vehicles by individuals accessing the site. It continues in the face of the incident giving rise to this impoundment. It continues despite drivers themselves resorting to attempts to “hide” keys in the vehicle. The situation is most wantonly unsecured and open to abuse and yet, the Applicant has not instituted any efforts to meet the “diligence” definitions set out above. This ground for the appeal therefore fails.
With regard to the second ground, being the allegation of exceptional hardship, the Tribunal also concludes that there is insufficient evidence. The Applicant did not demonstrate, nor even allege, that it had lost any business, client or service demand as a consequence of the impoundment over one month ago. The only suggestion was that one driver had reduced hours of work, but that he had been able to find alternate funding which would carry him through the remainder of the impoundment period, at which point he intended to return to full time work for the Applicant.
There was no evidence of any health or safety concerns arising from the impoundment.
The Applicant acknowledged it was aware that the impoundment fees could be claimed from the suspended driver and, indeed, had already placed that individual on notice it would be demanding such funds.
There was no evidence tendered by the Applicant that it had suffered, or was suffering, exceptional hardship as such is set out in the legislation.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for the remaining period of the 45 days.
LICENCE APPEAL TRIBUNAL
Jane Weary, Vice-Chair
RELEASED: March 9, 2012