Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-07-30
FILE:
7515/MVIA
CASE NAME:
7515 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 in Toronto by teleconference:
July 26, 2012
REASONS FOR DECISION
A hearing was held on July 26, 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: 2007 CHEV AVL (the “vehicle”)
Date of Appeal: July 9, 2012
This matter came before this Tribunal on July 26, 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 #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, 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 #2. The Applicant pleads for the return of the vehicle on the ground that he was under the impression that since he had paid outstanding fines, his licence had been reinstated. Further the Applicant claims that the loss of the vehicle will negatively impact his business.
At the hearing, the Applicant reiterated his comments that the vehicle impounded is a service truck that is needed for work. The Applicant claims the licence was reinstated after paying his fines.
In cross-examination, the Applicant confirmed that he believed he was eligible to a reduced period of suspension because he attended the Back on Track program. When questioned if he had installed the interlock security system in his vehicle, the Applicant replied that he did not to install it as he had “waited a full year”.
With respect to the date of conviction, the Applicant affirmed that he did not appeal the DUI and asserted that he was not aware of the date of conviction. He subsequently admitted that the date of conviction for the DUI had been on October 31st, 2011 and acknowledged that his licence had been suspended for a year from the date of conviction. Yet he argued that he had “lost his licence for a period of time before the conviction”.
The Applicant contended that he faxed to the Tribunal: a copy of eligibility to the reduced program; confirmation of having paid all the fines; confirmation of payment of reinstatement fees; as well a confirmation of the reinstatement of his licence obtained from the Ministry. When pressed, the Applicant retracted his statement, saying the proof of reinstatement had been retained by the police officer when the vehicle was impounded.
When questioned by the Registrar’s Agent with respect to the charge and conviction for driving while disqualified, the Applicant adamantly denied he had ever driven while disqualified.
Testifying with respect to exceptional hardship, the Applicant confirmed that he is the sole owner of the company that has a fleet of four vehicles. The Applicant stated that he had been carrying on business and maintaining his contracts.
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 ”Ability Impaired”, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 31, 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
In closing, the Applicant noted that he is now aware that his licence is suspended, but he does not want the truck back in order to drive it but rather to use it for work as there are contracts to be filled.
The Registrar’s Agent pointed out that the vehicle was impounded correctly.
According to Registrar’s Agent, grounds for due diligence are not applicable as the Applicant has no proof that he actually had a temporary driver’s licence. The Registrar’s Agent contended that all evidence indicated that the Ministry could not have issued a temporary licence or a notice of reinstatement as the Applicant’s licence is under suspension until May 1, 2013 as a result of a conviction on June 6, 2012 for driving without a licence on October 4, 2011.
As for exceptional hardship, the Registrar’s Agent maintains that the Applicant is both the owner of the vehicle as well as the suspended driver, according to the law the appeal must fail. Further, that the criteria are very specific, particularly with respect to alternate modes of transportation. The Applicant does have other vehicles registered to his name, which he has been using.
The Registrar’s Agent pointed out that there are no health and safety issues.
In conclusion, the Registrar’s Agent asked that the Tribunal confirm the order to impound.
The onus is on the Applicant to establish, 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;…
This is a somewhat unusual situation in that the owner of the vehicle is also the disqualified driver. The Applicant’s argument is that he paid all fines, including the fee for reinstatement of his licence, that he was given a reinstatement notice and was therefore eligible to drive.
The Tribunal concurs with the Registrar’s Agent that it would be quite a stretch to consider this matter under the criteria for due diligence. Nonetheless the Tribunal would be more apt to entertain the Applicant’s reasoning were it not for blatant lack of credibility in the totality of the Applicant’s evidence:
- the Applicant stated that he had no recollection of the date of conviction, yet subsequently admitted to being aware not only of the date but also that the suspension was for one year from the date of conviction;
- the Applicant testified that he faxed proof of payment of fines as well as proof of reinstatement to the Tribunal, later recanting, suggesting that the officer had taken the document; (no documentation on file)
- the Applicant denied ever being charged or convicted with driving under suspension, yet the Applicant’s record clearly indicates a conviction.
Given the evidence, the Tribunal finds 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 from the Applicant that the Applicant owns several vehicles, which are used to keep the business afloat. The Applicant offered no evidence as to how any losses incurred by the impounded vehicle would be immediate, significant and long lasting. Further, the only evidence before the Tribunal is that the impact of any loss that may arise is on the suspended driver himself, the Applicant. The criteria of section 50.2(3)(d) of the Act not being met, the appeal must fail.
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: July 30, 2012