Licence Appeal Tribunal
FILE: 7565/MVIA
CASE NAME: 7565 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 -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: David B. Caryll, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: August 28, 2012
REASONS FOR DECISION
A hearing was held 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 ("HTA" or the "Act").
THE TRIBUNAL RULED TO CONFIRM the Order to Impound imposed by the Registrar pursuant to Section 55.1(3) of the Act. As a result, the Applicant's motor vehicle will remain detained at the impound facility for 45 days.
INTRODUCTION
The Registrar of Motor Vehicles (the "Registrar"), made an order under section 55.1 of the Act to impound a motor vehicle for a period of 45 days. That order has been appealed by the owner. The owner, motor vehicle, and date of appeal are as follows:
Owner: Applicant
Motor Vehicle: 2000 Ford Mustang (the "vehicle")
Date of Appeal: August 8, 2012
The Applicant appeals on the basis that she exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended; and, the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(c) and (d) of the Act.
This matter came before the Tribunal on August 28, 2012 and, as there were no preliminary matters, the hearing proceeded.
ISSUE
The bases for the Applicant's appeal are:
Should the Tribunal set aside the Registrar's order to impound the vehicle on the basis that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver's licence (the "licence") of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension?
Should the Tribunal set aside the Registrar's order to impound the vehicle on the basis that the order will result in exceptional hardship?
BACKGROUND FACTS
The following facts are not in dispute.
On Wednesday, August 1, 2012, the Applicant took her vehicle to the home of an acquaintance (the "driver"). He was then to drive the vehicle to an automotive shop, where he works, to perform some repairs on the vehicle.
On Thursday, August 2, 2012, at approximately 1:45 a.m., the vehicle was stopped by the police. The police found that the driver's licence was under suspension for an offence under the Criminal Code. The police impounded the vehicle.
EVIDENCE CONCERNING DUE DILIGENCE
The Applicant testified that she assumed the driver had a valid driver's licence. He had done some previous repairs over the last two years, and, she said, there was nothing to suggest he had a suspended licence. The first time she heard his licence was suspended was from the police.
Under cross-examination, the Applicant said she did nothing to try and confirm the status of his licence. She did not even ask to see the driver's licence.
EVIDENCE CONCERNING EXCEPTIONAL HARDSHIP
The Applicant testified to the financial hardship and inconvenience she is suffering without a car. Other than the inconvenience, her major concern is the cost of retrieving her vehicle from impoundment.
She testified that she still goes to work, but uses public transportation. Rather than the 30 to 45 minutes it takes the Applicant to drive to work, the bus takes her approximately 90 minutes. She sometimes receives a drive to work from friends. She testified that she has taken a taxi to go shopping.
She said that she is in good health and did not miss any medical appointments. Her family has access to 911 Emergency Health Care.
LAW
Section 55.1 of the Act provides that the Registrar may make an order that a motor vehicle be 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 or set aside the order to impound, and the decision of the Tribunal is, pursuant to subsection 50.2(8) final and binding.
The owner may appeal the Registrar's order as set out in subsection 50.2(3):
(3) [Two of the] grounds on which an owner may appeal under subsection (1) and [two of the] grounds on which the Tribunal may set aside the order to impound are,
(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; or
(d) that the order will result in exceptional hardship.
This Applicant appeals on the basis of sections 50.2(3)(c) and (d).
With respect to an appeal under section 50.2(3) alleging that the owner exercised due diligence prior to releasing the vehicle to the driver. Black's Law Dictionary (sixth edition) at page 457 defines due diligence 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.
With respect to an appeal under section 50.2(3)(d) alleging that the impoundment results in exceptional hardship, the Shorter Oxford Dictionary 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.
Section 22 of Regulation 574 R.R.O. 1990, as amended by Ontario Regulation 632/98, provides for criteria to be considered and criteria not to be considered by the Tribunal in determining whether exceptional hardship will result from an order to impound under section 55.1 as follows:
22 (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 and, if no alternative is available, whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
(2) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the [Tribunal] shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an educational or training opportunity to any person.
(3) The [Tribunal] may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver's licence was under suspension resulted in the order to impound the motor vehicle, and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2)(b), (c) or (d).
(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle to replace the impounded motor vehicle and making arrangements to do without the impounded motor vehicle or a replacement during the impound period.
APPLICATION OF LAW TO FACTS
Due Diligence:
The first issue to be considered in this appeal is whether the Applicant:
"... exercised due diligence in attempting to determine that the licence of the driver at the time the vehicle was impounded, in respect of which the order was made, was not then under suspension."
Subsection 50.2(3)(c) of the Act is quite specific in that the owner of the vehicle must exercise due diligence, and the onus of proof is on the Applicant to establish that due diligence was exercised.
For the Applicant to rely on a defence of due diligence, she must show:
that she took all reasonable steps to prevent an individual without a valid licence from driving her car, and
that at the time of the impoundment of her vehicle, she had an honest and reasonable belief that her car was being driven by someone with a valid licence.
The evidence offered by the Applicant does not show any activity directed towards proving due diligence. Assuming that the driver had a valid driver's licence and that nothing indicated that he was suspended does not go anywhere near meeting the required standard.
The Tribunal finds that the Applicant failed to meet the test, as required by subsection 50.2(3)(c) of the Act.
Therefore, the appeal on the grounds of due diligence must fail.
Exceptional Hardship:
The second issue to be considered in this appeal is should the Tribunal:
"... set aside the Registrar's order to impound the vehicle on the basis that the order will result in exceptional hardship [to the Applicant]?"
The main thrust of the Applicant's argument has to do with the economic consequences of retrieving the vehicle from the impoundment facility, and some general inconvenience for her and her family.
The onus is on the Applicant to establish exceptional hardship, as the ground of appeal, 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.
There is no doubt that that the Applicant is inconvenienced, and will suffer some financial or economic loss by having her vehicle impounded. However, to establish a case for exceptional hardship the Applicant must first establish, as required by law, that there was:
"... no [available] alternative to the impounded motor vehicle ..."
The Applicant's testimony shows that there are alternatives to the impounded vehicle. These are: public transportation and assistance from friends to get to work; and taxis for shopping.
The Tribunal finds as a matter of fact that the persons affected by the impoundment have alternate sources of transportation.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal's enquiry must come to an end and the Applicant's defence of exceptional hardship must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses.
As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
DECISION
Although the Tribunal is sympathetic to the position in which the Applicant and her family have been placed, it is bound by the provisions of the legislation.
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Highway Traffic Act, R.S.O. 1990, c. H8 the Tribunal confirms the Order of the Registrar of Motor Vehicles to impound the Applicant's motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
David B. Caryll Member
RELEASED: September 5, 2012