Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7218/MVIA
CASE NAME: 7218 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.
Tri-Con Concrete Finishing Co. Ltd. Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D, Member
APPEARANCES:
For the Applicant: JOHN SAVIGNANO, Agent representing the Applicant
For the Respondent: FRANCES ILARI, Agent representing the Registrar of Motor Vehicles
Heard in Toronto: March 1, 2012
REASONS FOR DECISION
A hearing was held on March 1, 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.
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: 1999 CHEV EXP (the “vehicle”)
Date of Appeal: February 10, 2012
During the hearing, the Applicant’s Agent produced a photocopy of an Ontario Driver’s Licence issued February 08, 2012, which was filed as Exhibit #4.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the driver's licence was not under suspension, 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) (b), (c) and (d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis 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 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.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #2. The owner of the impounded vehicle is a corporation. In a typewritten note, the operations manager pleads for the return of the vehicle on the ground the vehicle is needed “to work and also to keep…employees working”.
During the hearing, the Applicant’s Agent reiterated the comments in the Notice of Appeal, explaining that the company owns the impounded vehicle. The suspended driver showed a driver’s licence with an expiration date of 2013 or 2014, which appeared to be valid. Furthermore, the Applicant’s Agent testified that the suspended driver assured him that he had a licence. The Applicant’s Agent was not able to produce the copy of the licence.
The Applicant‘s Agent testified that for the time being the company is renting a truck which is costing a fortune.
In cross-examination, the Applicant’s Agent confirmed that the owner of the company claims he saw the driver’s licence and that the expiry date was January or March of 2013.
According to the Applicant’s Agent, the normal protocol is to require an abstract prior to allowing a driver to take any vehicle. The only reason an abstract was not obtained in this instance, is that it was five o’clock in the morning.
The Applicant’s Agent confirmed that only about fifteen of the thirty-two vehicles owned by the company are on the road, as not all vehicles are needed everyday. A rental truck had to be obtained for the normal driver, and no business has been lost.
911 Emergency Medical Services are available in the area.
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 to Provide Breath or Blood Sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 27, 2012.
The Registrar called no other evidence.
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) (b), (c) and (d).
Section 41 of the Act identifies the type of appeals for which a licence is suspended in sections 41(1)(a), (b), (c), (d) and (e), and 41(7) and 42(1) and 42(5) as follows:
- (1) Subject to subsections 41.1 (1), (2) and (3), the driver’s licence of a person who is convicted of an offence,
(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;
(b) under section 249, 249.1, 249.2, 249.3, 249.4 or 252 of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle;
(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,
(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or
(ii) operating or having the care or control of a vessel within the meaning of section 48;
(c) under section 254 of the Criminal Code (Canada) committed in relation to,
(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or
(ii) operating or having the care or control of a vessel within the meaning of section 48;
(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40; or
(e) referred to in a predecessor to this sub-section,
is thereupon suspended ....
- (1) The driver’s licence of a person who is convicted of an offence under subsection 259 (4) of the Criminal Code (Canada) or under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40 is thereupon suspended for a period of,
(a) upon the first conviction, one year; and
(b) upon a subsequent conviction, two years,
in addition to any other period for which the licence is suspended and consecutively there to.
(4) This section applies in the same manner as if a person were convicted of an offence if the person pleads guilty to or is found guilty of an offence referred to in subsection (1) and,
(a) an order directing that the accused be discharged is made under section 730 of the Criminal Code (Canada) or under a provision that is enacted by a state of the United States of America and that is designated by the regulations; or
(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders Act (Canada) or a youth sentence is imposed under section 42, 59, 94, 95 or 96 of the Youth Criminal Justice Act (Canada) or an adult sentence is imposed under the Youth Criminal Justice Act (Canada), including a confirmation or variation of the disposition or sentence.
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.
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
In closing, the Applicant‘s Agent asked that the vehicle be returned, so that he may return it to the regular driver, and save “a little bit of money”.
In closing, the Registrar’s Agent pointed out that the vehicle was impounded correctly.
The Registrar’s Agent noted that the Applicant’s Agent appealed on three of the four grounds for appeal: due diligence, licence not suspended and exceptional hardship.
According to the Registrar’s Agent, it might be possible that the suspended driver had two licences, nonetheless the Ministry of Transportation would have merged the two files and the licence would still be suspended. The copy presented at the hearing bearing the date of February 08, 2012, if legal, can only be explained as having been obtained prior to the merging of the files by the Ministry of Transportation.
With respect to due diligence, a copy of the licence that was viewed and photocopied was not introduced at the hearing. Furthermore, the Applicant’s Agent admitted that no attempt was made to verify the validity of the suspended driver’s licence with the Ministry’s 24- hour service.
As for exceptional hardship, the Registrar’s Agent pointed out that the Applicant has alternative vehicles and that business is being carried on. There are 911 Emergency Medical Services in the area. Therefore, there are neither health nor safety concerns, nor losses which can be considered significant and lasting.
The onus is on the Applicant’s Agent to establish that the licence was not suspended at the time of impoundment, that due diligence was exercised and that the impoundment will result in exceptional hardship, as grounds of appeal, as provided in sections 50.2(3)(b), (c) and (d) of the Act, respectively.
The Tribunal will first address the matter of the driver’s licence. Section 50.2(3)(b) of the Act allows an appeal on the grounds:
(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;
The Registrar has presented the Tribunal with documented evidence of the suspension.
The Applicant’s Agent, although claiming that a licence was viewed and photocopied, failed to produce a copy. The Tribunal has no alternative but to accept the Registrar’s evidence and find that the licence of the driver in question was under suspension at the time the vehicle was impounded.
Thus the criteria for appeal under section 50.2(3)(b) of the Act were not met.
Addressing the matter of due diligence, section 50.2(3)(c) of the Act prescribes:
(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; …
Legislation intends that owners of motor vehicles try to determine whether or not the licence of the person who is to drive the owner’s car has a valid licence. The courts have held that to rely on a defence of due diligence, an applicant must demonstrate that reasonable steps were taken to ensure the validity of an individual’s driver’s licence, prior to allowing that individual to drive. In the case of a corporation, the issue is whether those who are the directing mind and will of the corporation exercised due diligence.
The Tribunal heard testimony from the Applicant’s Agent that procedures are in place to ensure abstracts are requested. Nonetheless, the gist of the evidence is that a driver’s licence was presented, viewed and photocopied. No copy was presented to the Tribunal.
As a corporation, the Applicant has a responsibility to ensure that all drivers have a valid driver’s licence. In this matter, the suspended driver was handed care and control of a vehicle without the required verification of the validity of his licence, prior to the production of a driver’s abstract, the minimum due diligence requirement in the circumstances. Thus, given the evidence, the Tribunal concludes that the Applicant does not meet the standard of section 50.2(3)(c) of the Act.
With respect to exceptional hardship, the onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.
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, as follows:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
There are alternate vehicles available to the Applicant which enables the business to carry on as usual. Further, there is no documented proof that any losses which may have been incurred are significant and long lasting.
Therefore, the Tribunal finds that the criteria of section 10(1) of O. Reg. 631/98 are not met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 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 45 days.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Member
RELEASED: March 7, 2012