7301 v. Registrar of Motor Vehicles, 2012 CanLII 21119

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-04-23

FILE:

7301/MVIA

CASE NAME:

7301 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.

Applicant

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Antoine Aouad, M.D., Member

APPEARANCES:

For the Applicant:

His daughter, as Agent

For the Respondent:

Russell McKnight, Agent representing the Registrar of Motor Vehicles

Heard in Toronto:

April 11, 2012

REASONS FOR DECISION

A hearing was held on April 11, 2012, 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: 2005 NISS ASL (the “vehicle”)

Date of Appeal: March 23, 2012

The Applicant’s daughter acted as Agent and Interpreter. By way of preliminary matters, she informed the Tribunal that the officer impounded the car under the wrong law. She also noted that a correction needed to be made to paragraph nine of the letter to the Tribunal stating the grounds for appeal. The words “I can” should read, “I cannot”.

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 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, 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.

The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #2. In a typewritten note the Applicant pleads for the return of his vehicle as the Applicant “did not know” that his daughter was using the vehicle, nor was he aware of the “issues regarding her Driver’s Licence”. The Applicant maintains that the loss of the vehicle will cause exceptional hardship as both he and his wife are under doctor’s care and have regular appointments. According to the Applicant, the vehicle is used to run errands for the upkeep of the family.

The Applicant attached a discharge summary from the hospital and the post operative instructions to the Notice of Appeal.

During the hearing, the Applicant reiterated the comments in the Notice of Appeal, emphasizing that he had no idea what happened and why the suspended driver took the car.

The Applicant testified that he had in the past asked his daughter whether she was able to drive and she showed him a paper from the Ministry of Transportation, but he does not know what it was about.

The Applicant maintained that he needs the car to go to the doctor.

In cross-examination, the Applicant affirmed that he is retired and his wife is disabled. The Applicant confirmed that he owns another vehicle, a Toyota, which he uses now to get about, but sometimes he needs his sister or a friend to take him to the doctor, as his other daughter also uses the Toyota. The Applicant asserted that he has not missed any doctor’s appointments.

The Applicant’s daughter testified that she was the one responsible for the incident, and does not see why her father has to be the one to suffer. She feels that she is a respectable and responsible person. She took the vehicle because of financial constraints. She works part-time and was given a job early in the morning.

She testified that she is aware that both her parents have doctors’ appointments which, although none have been missed, have created difficulties as well as extra expense, in that sometimes a taxi has to be used and it is costly.

In cross-examination, she testified that she is not able to assist financially, but she is assuming “responsibility” for what happened. The witness emphasized that the reason for the appeal was to ensure that there would be no costs involved in having the vehicle returned; otherwise the appeal would be a waste of time.

According to the witness, the Applicant was not aware of the suspension. She maintained that the Applicant would not have let her drive the car. She took the car because she had the opportunity to make a substantial amount of money.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Ability Impaired, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 18, 2014.

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:

1. 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.

2. 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.

3. 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.

O. Reg. 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 subsections 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

In closing, the Applicant’s Agent asked that the vehicle be returned, as the family is a respectable family who has done many good deeds in the community.

She is adamant that her father is not guilty of anything. The incident that led to the impoundment was a mistake that will not happen again.

In closing, the Registrar’s Agent pointed out that the vehicle was impounded correctly.

The Registrar’s Agent noted that the Applicant appealed on two of the four grounds for appeal: due diligence and exceptional hardship.

According to the Registrar’s Agent, exercising “due diligence” requires that the owner of the vehicle “do something” to protect the vehicle from being driven by unlicensed drivers. In this case, the Applicant did nothing to prevent the vehicle from being driven.

As for exceptional hardship, the Registrar’s Agent pointed out that the Applicant has an alternative vehicle as well as alternate modes of transportation. As the Applicant is retired, the Registrar’s Agent contends that there has been no loss of employment. With respect to health and safety, the Registrar’s Agent noted that the Applicant confirmed he has not missed any appointments; therefore, there are no health or safety concern issues which can be considered.

In rebuttal, the Applicant’s Agent maintained that there has been loss of employment as the Applicant used to drive her to her places of employment, which he cannot do now. As for education, the Applicant’s Agent stressed that her sister is suffering as well as she has had to miss school. According to the Applicant’s Agent, the Applicant has another major surgery coming up, and she is afraid that he will miss some future medical appointments.

The Registrar’s Agent argued that the points raised by the Applicant’s Agent constituted new information which was not brought out during the evidence. The Tribunal concurs.

The onus is on the Applicant to establish due diligence and exceptional hardship, as grounds of appeal, as provided in subsections 50.2(3)(c) and (d) of the Act, respectively.

The Tribunal will first address 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 in respect of which the order was made was not then under suspension;…

The legislation requires 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.

It appears that at some point in time, the Applicant was aware of his daughter’s suspension, nonetheless other than asking her if she was able to drive, he took no steps to verify that she did in fact have a valid driver’s licence.

Thus, given the evidence, the Tribunal concludes that the Applicant does not meet the standard of subsection 50.2(3)(c) of the Act.

With respect to exceptional hardship, the onus is on the Applicant to establish that the loss of the impounded vehicle will cause exceptional hardship, as provided in subsection 50.2(3)(d) of the Act.

Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:

10. (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.

The Tribunal heard testimony from the Applicant and his witness that, albeit inconvenient, there are alternate modes of transportation available to the Applicant. The criteria of section 50.2(3)(d) of the Act not being met, the appeal must fail.

The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses.

Health and safety might have been a consideration had the Applicant not attested that no medical appointments have been missed. A suggestion that appointments may be missed in the future is purely speculative and cannot be considered by the Tribunal.

The Tribunal noted the Applicant’s Agent’s comments about the wrong section of the law being quoted on the impoundment notice. The Tribunal has no jurisdiction to deal with this issue; therefore comment will not be made.

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 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 45 days.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Member

RELEASED: April 23, 2012