Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7363/MVIA
CASE NAME: 7363 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: Self-Represented
For the Respondent: Frances Ilari, Agent
Heard by teleconference: May 11, 2012
REASONS FOR DECISION
A hearing was held on May 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 “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 90 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: 2007 Toyota FJC (the “vehicle”)
Date of Appeal: April 23, 2012
This matter came before this Tribunal on May 11, 2012 and proceeded as an electronic (teleconference) hearing.
The Respondent’s Agent requested that the Tribunal dismiss the Applicant’s appeal on the grounds of exceptional hardship, as the Applicant’s vehicle was previously impounded.
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. The Applicant maintains that the loss of the vehicle will cause exceptional hardship as she is the “sole financial provider” for the family. According to the Applicant, the vehicle is required to take her son to all extra curricular activities as well as for her to attend medical appointments.
In a handwritten note attached to the Notice of Appeal, the Applicant claims to have been given the misleading information regarding the validity of the disqualified driver’s licence.
During the hearing the Applicant alluded to Section 50.2 of the Highway Traffic Act stating: “at the time of the non-compliance I had an honest and reasonable belief in a set of facts that if true would have resulted in there not being any non-compliance.” The Applicant testified it was her understanding that the disqualified driver’s licence was no longer under suspension.
In cross-examination, the Applicant confirmed she became aware of the suspension in 2010 when the vehicle was first impounded. Prior to allowing the suspended driver to drive her vehicle, the Applicant simply had a discussion with the suspended driver and believed his word to be true. According to the Applicant she did not ask to see the licence nor verify with the Ministry.
The Applicant agreed with the Respondent’s Agent that she would not have allowed the suspended driver to drive her vehicle had she known of his extensive record. Nonetheless, the Applicant maintained that her defence is Section 50.2 that she had honest belief that the information she was given was true.
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 Driving While Disqualified, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 27, 2015.
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
In closing, the Applicant pleaded for leniency in that she believed the licence was not suspended.
According to the Registrar’s Agent, the licence of the disqualified driver is suspended for life. The Registrar’s Agent asserts that the evidence is not in dispute, yet 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, in fact she repeatedly allowed the suspended driver to driver her vehicle. The Registrar’s Agent pointed out that merely assuming someone is telling the truth does not constitute due diligence.
In rebuttal the Applicant reiterated her comments regarding non compliance, under “Section 50.2 of the Highway Traffic Act.”
The onus is on the Applicant to establish the licence was not suspended at the time of impoundment, and due diligence and 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;…
The Tribunal must point out that that Section 50.2 of the Highway Traffic Act refers to rights of the owner to a motor vehicle to appeal the impoundment as well as the grounds of appeal. What the Applicant erroneously referred to as Section 50.2 of the Highway Traffic Act is simply a guideline established by the courts as to what constitutes due diligence.
The Applicant adamantly maintains that she had reasonable belief that the suspended driver’s licence was not suspended, and acted in that belief by allowing him to drive her vehicle.
The intent of the legislation is 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 also 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. The evidence is clear that even though the Applicant’s vehicle had been impounded previously for similar reasons, she still did nothing to ensure that the disqualified driver did in fact have a valid driver’s licence. At the very minimum, it might have been prudent to ask to see the licence.
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 fact is that a vehicle owned by the Applicant was previously impounded, thus, the Applicant is prohibited an appeal under Section 50.2 (4). The Tribunal has no alternative but to dismiss this matter.
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 90 days.
LICENCE APPEAL TRIBUNAL
Dr. Antoine Aouad, Member
RELEASED: May 17, 2012