7666 v. Registrar of Motor Vehicles, 2012 CanLII 67857

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-10-30

FILE:

7666/MVIA

CASE NAME:

7666 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:

R. CRAIG BOTTOMLEY, Counsel

For the Respondent:

SONIA DE SANTIS, Agent

Heard by teleconference:

October 25, 2012

REASONS FOR DECISION

A hearing was held on October 25, 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: 2011 CHEV CLT (the “vehicle”)

Date of Appeal: October 4, 2012

The Applicant filed a motion requesting an extension for the filing of the appeal, to which the Registrar consented, whereupon this hearing was then scheduled.

Prior to the hearing, the Applicant’s Counsel requested that the ground of “due diligence” be added to the Notice of Appeal. As the Registrar’s Agent raised no objection, the request was granted.

The Applicant did not attend at the teleconference hearing; her Counsel chose to proceed based on the evidence submitted.

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 #1), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded, that the driver's licence was not under suspension, 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

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 pleads for the return of the vehicle as the Applicant was not aware of the suspension. The Applicant maintains that the loss of the vehicle will cause exceptional hardship as she is both working and studying and there are fixed expenses she needs to meet such as car and insurance payments as well as tuition.

An affidavit sworn by the Applicant attests to the same information contained in the Notice of Appeal.

No further evidence was proffered by the Applicant.

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 November 23, 2014.

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

The Applicant’s Counsel based his remarks on the information provided on the affidavit. According to Counsel, the affidavit discloses two grounds for appeal in that she states that she was unaware of the fact the driver had no licence, thus making an argument for due diligence. The Applicant’s Counsel contends that the question for “due diligence” according to criminal standards is: “was she woefully blind”. In other words did she have any reason to question whether this person may not be able to drive. The Counsel maintains that the Applicant had no reason to be suspicious.

With respect to the procedures that are available, according to Counsel, just because these procedures are in place does not mean that must be followed, particularly in situations where there is an element of trust involved.

The Applicant’s Counsel, admitting to not be certain of the powers of the Tribunal, suggested that the Applicant might be requesting an early termination of the impoundment in order to save her the cost of the balance of the impoundment period.

In closing, the Registrar’s Agent explained to the Applicant’s Counsel the procedures in place in order to obtain verification of validity of a driver’s licence.

The Registrar’s Agent noted that the Applicant appealed on two of the four grounds for appeal: due diligence and exceptional hardship.

According to the Registrar’s Agent, exercising “due diligence” requires that the owner of the vehicle “do something” to protect the vehicle from being driven by unlicensed drivers. There is no evidence to suggest that the Applicant made any efforts to verify the validity of the licence of the person she allowed to drive her vehicle.

As for exceptional hardship, the Registrar’s Agent contends that there is not enough information to ascertain what has transpired during the period of impoundment. Several questions would have been answered at the hearing, such as has she missed school and has she missed work. There is absolutely no information on these issues.

The Registrar’s Agent explained that the Tribunal does not have the power to reduce the period of impoundment, and asked the Tribunal confirm the Registrar’s decision to impound.

The onus is on the Applicant to establish that the licence was not suspended at the time of impoundment, that due diligence was exercised and that the impoundment will result in 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;…

Legislation intends that owners of motor vehicles try to determine whether or not the licence of the person who is to drive the owner’s car has a valid licence. The courts have held that to rely on a defence of due diligence, an Applicant must demonstrate that reasonable steps were taken to ensure the validity of an individual’s driver’s licence, prior to allowing that individual to drive.

It appears that the Applicant was unaware of the suspension, thus, it is evident that no steps were taken to verify that the suspended driver did in fact have a valid driver’s licence.

The Tribunal concurs with the Applicant’s Counsel that there are situations where the onus to verify the validity of a driver’s licence with the Ministry may be waived. Unfortunately the Applicant, not having testified, the Tribunal does not have enough evidence to warrant such a conclusion.

Given the evidence on in this matter, or the lack thereof, 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.

It does not suffice to argue financial loss in order to establish financial hardship. As stated by the Registrar’s Agent, the legislation requires the Tribunal to assess certain facts according to section 10 of Regulation 631/98 which provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:

10. (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…

10.3 (b) the loss will be immediate, significant and lasting;

Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.

The Tribunal has no evidence in this regard.

Further the Tribunal is unable to determine whether the Applicant’s situation meets the criteria of being significant and lasting, as once again no such evidence was presented.

Since the Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses, the Tribunal must find that the Applicant does not meet the criteria under in section 50.2(3)(d) 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 45 days.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Presiding Member

RELEASED: October 30, 2012