7635 v. Registrar of Motor Vehicles, 2012 CanLII 60642

Licence Appeal Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-10-11

FILE:

7635/MVIA

CASE NAME:

7635 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 Applicants:

DARYL WINSLOW, Agent

For the Respondent:

RUSSELL MCKNIGHT, Agent

Heard by teleconference:

October 2, 2012

REASONS FOR DECISION

A hearing was held on October 2, 2012, at Toronto, Ontario, 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: 2010 Ford SRW (the “vehicle”)

Date of Appeal: September 20, 2012

By way of preliminary matters, the Registrar’s Agent explained that the original Notice of Appeal filed by the Applicant was unacceptable as the grounds of exceptional hardship could not be used as this is a second impoundment.

The Applicant’s Agent confirmed that the notice received September 20, 2012 is the one to be considered as the ground for appeal, indicating due diligence as the ground for appeal.

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 as provided in section 50.2(3)(c) 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?

FACTS

Evidence for the Applicant

A summary of the Applicant’s evidence follows.

The Applicant’s Agent’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #1. The Applicant’s Agent maintains that:

• the impounded vehicle is leased to a company “in good standing at the Ministry on the effective lease date Nov. 19, 2009;

• the Applicant has no facility to verify the validity of the driver’s of a leased vehicle;

• the Applicant received no notices from the Ministry regarding the status of the driver.

Testifying on behalf of the Applicant the Applicant’s Agent asked that the vehicle be returned as the Applicant has no recourse to recover any losses from the lessee, and it is the Applicant who will incur the impoundment costs.

The Applicant’s Agent attested that the lessee will not be getting the car back, as the vehicle is under repossession, as such there will be no further risk of the vehicle being driven by a disqualified driver.

According to the Applicant’s Agent, the company has over 1,500 vehicles on lease, many of them registered to other companies, which makes it impossible for the Applicant to verify the licences of individuals who are not party to the contract.

In cross-examination, the Applicant’s Agent confirmed that the vehicle was leased in November 2009, and that in 2011 the company received a Notice of Impoundment, but the lessee obtained release on his own, and the lessor took no further action.

The Respondent’s Agent explained all the documents in the Registrar’s package to the Applicant’s Agent, and asked what if anything did the Applicant do at the time of the first impoundment of the vehicle. The Applicant’s Agent replied that nothing was done as the lessee advised the matter was taken care of.

The Applicant’s Agent confirmed that the company is now taking action since this is a different situation as the vehicle is being repossessed. The Applicant’s Agent confirmed that it appears the lessee is attempting to have the vehicle released as well. The Applicant is appealing in order to prevent the lessee from taking the vehicle out of impound.

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 June 12, 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).

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.

APPLICATION OF LAW TO FACTS

In closing, the Applicant’s Agent maintained that given the fact that the lessee will not be getting the vehicle back, the only party being punished, due to financial hardship, is the Applicant as owner of the vehicle.

According to the Registrar’s Agent, the Applicant’s Agent failed to prove that due diligence was exercised. According to the Registrar’s Agent the argument put forth is that the lease has expired, that the vehicle is being repossessed and that the lessor will not be able to recover any losses from the lessee. The Registrar’s Agent emphasized that neither of these arguments meets the criteria for an appeal under due diligence.

The Registrar’s Agent contends that the vehicle was impounded properly, and reminded the Tribunal that this is a second impoundment for this vehicle.

The onus is on the Applicant that the grounds of appeal that due diligence was exercised, as provided for in sections 50.2(3)(c) the Act which 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 Agent’s argument is that as a leasing company, the Applicant is unable to verify the validity of each driver’s licence, particularly in situations where a vehicle is leased to a company, since there is always the possibility of multiple drivers, who are not party to the original agreement.

The Tribunal understands the Applicant’s Agent’s argument, nonetheless since one view negates the other, the Tribunal must find that the Applicant’s position contradicts the Applicant’s contention that due diligence was exercised. 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.

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., Presiding Member

RELEASED: October 11, 2012