7353 v. Registrar of Motor Vehicles, 2012 CanLII 27173

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-05-15

FILE:

7353/MVIA

CASE NAME:

7353 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:

RUSSELL MCKNIGHT, Agent

Heard in Toronto 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: 1987 KAWK Z7F (the “vehicle”)

Date of Appeal: April 18, 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. Although the Applicant confirmed the impoundment he feels that he maintains the right to appeal, as not being aware of his rights at that time, he failed to appeal.

A discussion ensued as to the admissibility of documentation submitted by the Applicant, which was not forwarded to the Respondent, within the prescribed time, as per Rules of Practice. The Tribunal ruled these documents were inadmissible.

Documents submitted by the Applicant attached to the Notice of Appeal together with the Respondent’s submissions 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 due to:

• depression which causes him to feel isolated, and that “Undue financial troubles and hardship will be seriously added to-turned into a prisoner room”.

• alienation of affection as “Social prevention from my mate is undue hardship”.

• the loss of the vehicle which will prevent him from working at his “temp work” where he has worked for “8 years”.

The Applicant invoked sections of the Constitution and the Human Rights Code his submissions. During the hearing, the Applicant:

• claimed to be a Natural Person not a Legal Person.

• discussed a previous incident in which he feels was an inappropriately accused and unjustly dealt with, emphasizing that the suspension of his licence is improper, and that according to the Human Rights Code he has the right to his property as well as the right to travel.

• asserted: “Sect 176.1 of the Criminal Code this impoundment is obstructing my calling as a man of God… which is against the constitution”., and that as a man of God, he need not answer to anyone other God.

In cross-examination, the Applicant confirmed that he did not appeal the 2011 impoundment as he “did not have the knowledge”. For the same reason, according to the Applicant, he did not appeal the unlawful conviction at the time, but is in the process of appealing it now.

In reply to the Respondent’s Agent question as to whether he would drive the vehicle if it was released today, the Applicant said “No”, and explained that he does not as yet have the “original claim of right document”.

In response to the Tribunal’s questions, the Applicant admitted to not having a valid driver’s licence. Nonetheless according to the Applicant he exercised due diligence as he “got extensions on …fines …and agreed to a 6 month suspension and not the extra year that was unlawfully added on, which caused all the new problems”.

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 of Motor Vehicles regarding the impoundment;

4. 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 May 26, 2013.

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.

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 maintained that he has an exemption, as the enactments under the HTA only apply to government employees or legal persons and he is a man of God protected by article 176 of the Criminal Code. The Applicant contends that the loss was significant and immediate as he is a painter who works alone at different jobs where public transportation is not always available.

In closing, the Applicant stated that he is insured and qualified to operate a vehicle, and argued that he is protected due to his calling. As well,, the State acted unlawfully and contrary to a court order.

According to the Registrar’s Agent, the Applicant was suspended until May 26, 2013, at the time the vehicle was impounded, In order to succeed in his appeal with respect to due diligence, the Applicant needs, in this instance, to show that his licence was not suspended. Whether or not the Applicant agrees with the suspension is irrelevant.

In rebuttal, the Applicant claimed that he was “not driving” he was “travelling”, and that the laws do not apply to him.

Both in written submissions and his viva voce evidence, the Applicant invoked the Constitution. According to Section 8 of the Rules of Practice, the Tribunal is precluded from hearing arguments on the matters unless:

8.1

1. notice of a constitutional question shall be served on the other parties, the Tribunal, the Attorney General of Ontario, and the Attorney General of Canada as soon as the circumstances requiring notice become known and, in any event, at least 15 days before the question is to be argued before the Tribunal, and

The onus is on the Applicant to establish the licence was not suspended at the time of impoundment, or due diligence and exceptional hardship, as grounds of appeal, provided for 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 intent of the legislation is that owners of motor vehicles try to determine whether or not the person who is to drive the owner’s car has a valid licence. The Applicant’s argument is that he took steps to overturn what he believes to be an unlawful suspension, nonetheless admitted that he currently does not carry a valid driver’s licence. As such, the ground for appeal on due diligence must fail.

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

Antoine Aouad, M.D., Member

RELEASED: May 15, 2012