Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-06-22
FILE:
7438/MVIA
CASE NAME:
7438 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:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicant:
Her nephew as Agent
For the Respondent:
Frances Ilari, Agent
Heard by teleconference:
June 20, 2012
REASONS FOR DECISION
A hearing was held on June 20, 2012, at by teleconference 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: 2002 Dodge , GRC (the “vehicle”)
Date of Appeal: June 5, 2012
The Applicant’s nephew acted as agent and interpreter, as necessary. The documents filed by the parties were accepted into evidence as exhibits to this proceeding.
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 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
The Applicant’s Agent explained that on the day of her husband’s conviction and licence suspension, May 16, 2012, the Applicant had a conversation with him at which time he agreed that he would not drive the vehicle. She trusted him. There were two sets of keys, the set generally used by her husband and a spare set. The vehicle keys were kept in the same location as other keys and were easily accessible. Her husband is usually quite responsible and she had no reason to believe that he would drive the car while she was out with their daughter.
Through questioning by Ms Ilari, the Applicant advised that her husband was the main driver of the vehicle up to the date of conviction, May 16, 2012. Until May 2010, when her husband was first charged with the offence which gave rise to the suspension in issue, he was, in fact, the registered owner of the vehicle. At that time, ownership was transferred to her. The Applicant was at all times aware of her husband’s licence suspension, hence her verbal agreement with him that he no longer drive the vehicle.
In terms of the grounds of exceptional hardship, the Applicant, through her Agent, explained that the family had two sources of income. The primary source has been the husband’s business as a truck driver. He owns his own truck, however, while his licence is under suspension, that work is no longer available to him and therefore the family is without that income source. In addition, her husband had taken a course in mobile car repair in 2010. This involved outfitting the vehicle with the necessary equipment and required removal of all but the front seats. This business was intended to supplement the family income and up until May 16, 2012 was operated on a part-time basis with 2-4 jobs scheduled per week. The Applicant had been involved in the administrative aspect of this business. With her husband’s licence suspension, the intention was to expand this business. The Applicant would drive the vehicle to the various locations and her husband would carry out the repairs.
Ms Ilari pointed out that the section 55.1(10) permits the owner of the vehicle to remove any load from the motor vehicle, in this instance, the tools from the van. The Applicant’s Agent clarified that the tools were affixed and therefore not able to be easily removed from it and placed into another vehicle for the duration of the suspension period.
The Applicant confirmed that she does own another vehicle, a 2004 Lexus for the family’s personal needs such as visiting her mother, shopping and transporting their daughter. The loss of the vehicle for business use is her concern.
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 <o
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 failing/refusing to provide a breath or blood sample under the Criminal Code of Canada pursuant to which the licence of the driver was then under suspension until May 16, 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:
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 Tribunal accepts the Registrar’s submission that the vehicle was impounded correctly.
One of the grounds of appeal enunciated in the Act is that the owner exercised due diligence in attempting to determine that the driver’s licence was not suspended. The Applicant asserted this in her appeal. But the Applicant was quite candid. She knew that her husband’s licence was suspended. What she does assert is that she exercised due diligence to ensure that he did not drive. Even if that could be seen as falling within the language of the section, the Tribunal could not conclude that the Applicant took any positive steps to ensure her husband did not drive. There was a verbal agreement that he not drive. She trusted him to keep his word. So, as a result, the keys were kept with all the household keys, fully accessible to him. The vehicle had effectively been her husband’s to use prior to May 16, 2012. While he took the vehicle (and we do not know for what purpose) without advising her, she has not asserted as a ground of appeal that the vehicle was stolen.
In terms of exceptional hardship, in this instance, the financial loss to the family, the Act provides that the Tribunal can consider this only in certain circumstances. These are somewhat unusual facts in that the vehicle is, itself, the business. The tools of the trade are contained within it. There is clearly an alternate vehicle for personal use (and there is no suggestion of any threat to the health or safety of any person flowing from the impoundment), but it cannot be used for the business , a business which was in effect, that of the suspended driver to supplement the family income. However, this was very much a fledgling business, one which it was hoped would produce more income for the family given that the husband cannot work as a truck driver because of his licence suspension, just 9 days before the impoundment. There is no evidence, beyond that of the 2-4 jobs per week that the income earned would be more significant than that during the period of impoundment. It was the stated intention to grow the business but no evidence to suggest efforts had come to fruition during this period, due perhaps to the very recent licence suspension.
On these facts, there is little or no evidence to base a conclusion that the loss suffered will be “immediate, significant and lasting”. The Tribunal cannot conclude that the necessary factors exist to allow it to conclude that exceptional hardship will result.
There is no question that the costs of the impoundment itself are not insubstantial, but the Tribunal cannot assess exceptional hardship based on this.
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
Patricia McQuaid, Vice Chair
RELEASED: June 22, 2012