Licence Appeal Tribunal
FILE: 7345/MVIA
CASE NAME: 7345 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.
7345 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: ANTOINE AOUAD, M.D. Member
APPEARANCES:
For the Applicant: Self represented
For the Respondent: RUSSELL MCKNIGHT, representing the Registrar of Motor Vehicles
Heard in Toronto by teleconference: May 3, 2012
REASONS FOR DECISION
A hearing was held on May 3, 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 “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. 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: 1997 TOYT USX (the “vehicle”)
Date of Appeal: April 13, 2012
This matter came before this Tribunal on May 3, 2012 and proceeded as an electronic (teleconference) hearing.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), 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 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 #1. In a typewritten note, the Applicant pleads for the return of the vehicle as the Applicant “did not know” that about the suspension. The Applicant maintains that the loss of the vehicle will cause exceptional hardship as she has “chronic illness… Epstein Barr virus”, which causes fatigue and prevents her from walking “without getting exhausted”.
The Applicant attached a note from the suspended driver admitting that he lied to the Applicant about having a licence.
During the hearing, the Applicant reiterated the comments in the Notice of Appeal, emphasizing that she had no reason to disbelieve the disqualified driver as he had been honest with her about his past, and when he told he had a licence, she believed him.
With respect to hardship, the Applicant confirmed her illness and stated that she is receiving a disability pension. She attested that she is not able to walk and has had to rely on her daughter to take her to buy groceries.
The Applicant testified that she will not be able to pay for the impoundment fees; she believes she had been punished enough.
In cross-examination, the Applicant confirmed that the disqualified driver has rented a room in her house since August of last year. The Applicant explained that since the impoundment the disqualified driver has been picking up her prescriptions and the groceries with his bike.
According to the Applicant, she uses the car to drive her disabled friends when they go out together, and to visit her parents. Since the impoundment, her parents have taken her out to dinner a couple of times. The Applicant asserted that her father is upset with her due to the impoundment and will not help her financially.
She has not missed any medical appointments other than dental, which she cancelled, nonetheless she did not go to the doctor when she had a migraine.
In reply to the Registrar’s Agent question as to whether she asked to see the suspended driver’s licence, the Applicant admitted she had not.
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 Dangerous Driving, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 15, 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)(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
The Applicant closed by stating that she is “really depressed” and needs the vehicle to go out. She feels that she is “stuck on her own”, and that if she has to pay the impoundment fees she will “be totally without a car”.
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; she did not even ask her tenant to show her his driver’s licence.
As for exceptional hardship, the Registrar’s Agent contends that there has been no loss of employment, as the Applicant is receiving a disability pension. The Registrar’s Agent pointed out that the Applicant indicated that she would not be able to cover the impoundment costs, nonetheless, the Registrar’s Agent emphasized that the Tribunal cannot consider the costs of the impoundment as there are other venues for the Applicant to recover her loss.
With respect to health and safety, the Registrar’s Agent noted that the Applicant confirmed she has not missed any medical appointments. As far as prescriptions, the Registrar’s Agent suggested that she may be able to have the prescriptions delivered if necessary, yet so far both her daughter and the suspended driver have been picking up her medication. Therefore, there are no health or safety concern issues which can be considered.
The onus is on the Applicant 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)(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;…
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.
It appears that the Applicant was unaware of the suspension: nonetheless, she took no steps to verify that he did in fact have a valid driver’s licence, not asking to see it.
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 that the loss of the impounded vehicle will cause exceptional hardship, as provided in section 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:
- (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 that both the Applicant’s daughter and her parents have taken her out. Sporadic invitations to dinner cannot really be considered as having an alternate means of transportation.
Having established that there is no alternate mode of transportation, the Tribunal may proceed to consider the issue of financial loss as per Section 10.3 (b) of Regulation 631/98 to determine if:
(b) the loss will be immediate, significant and lasting;
According to the evidence the Applicant is receiving a disability pension therefore there has been no loss of salary. There is no testimony with respect to any additional expenses incurred other than the cost of the impoundment. Since the Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses, the Tribunal must find that the Applicant does not meet the criteria under in section 50.2(3)(d) of the Act.
Health and safety might have been a consideration had the Applicant not attested that no medical appointments have been missed, and that she has been able to obtain her prescriptions.
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., Presiding Member
RELEASED: May 08, 2012