Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7984/MVIA
CASE NAME: 7984 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: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Jay Shanmorgan, Agent
Heard in Toronto: April 9, 2013
REASONS FOR DECISION
A hearing was held on April 9, 2013, at Toronto Ontario, in person 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: 2009 Volvo C24 (the “vehicle”)
Date of Appeal: March 21, 2013
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(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 testified that his vehicle was impounded after he lent the car to an acquaintance to drive. The Applicant had been drinking and had said he was going to call a taxi to go home. The acquaintance offered to drive the Applicant home in the Applicant’s vehicle. Because the Applicant had not seen the acquaintance for some time, he asked to see the driver’s licence before allowing the acquaintance, whom he believed was sober, to drive.
The Applicant drives an airport limousine for a living. He and a partner, who lives in a different municipality from the Applicant, share the limousine. They work alternate days. The Applicant uses the impounded vehicle to drive to the partner’s home where he leaves it for the partner’s use and picks up the limousine and leaves it for the partner’s use.
The Applicant testified that following the impoundment of his vehicle, he used a taxi to reach his partner’s home. Because his hours are erratic, depending on the calls he is assigned, public transit is not always available, particularly in the early morning hours. However, he was late when he used taxis the first few days and received a warning letter from his employer. He has subsequently rented a vehicle at the cost of approximately $275 per week.
The Applicant testified that he normally earns $300 to $400 a week although this can sometimes be as high as $500 to $600. He lives with his brother’s family and pays no rent although he does contribute to household expenses by purchasing groceries. He testified that the cost of the rental vehicle is causing him hardship but he cannot afford to lose his job.
The Applicant also advised the Tribunal that he is leaving the country before the impoundment is over.
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 having a blood/alcohol content in excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 15, 2013.
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 section 50.2(3)(d).
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 appealed the impoundment on the ground of exceptional hardship. Section 10 of Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle.
In this case, the Applicant has rented a vehicle to replace the impounded vehicle. Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered. Although the cost of the rental vehicle represents a significant proportion of the lower of the amounts the Applicant testified he earns, the Applicant also indicated that his income is sometimes higher, depending on the nature of the calls he receives. The Applicant testified that he lives with his family and does not have housing costs. The rental cost has been incurred for a short period of time and in fact, the Applicant testified that he is leaving the country before the end of the impoundment period, thereby shortening the rental period The Tribunal therefore finds that the rental vehicle is a reasonable option to the impounded vehicle. The evidence indicates that the Applicant does have an alternative to use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
The Tribunal notes that although the Applicant did not cite due diligence as a ground on his notice of appeal, he did state he asked to see the driver’s licence of his acquaintance, the suspended driver. The Tribunal has therefore considered whether or not the ground of due diligence applies in this case.
“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.
The Applicant testified that because “we were drinking”, he decided to call a taxi to get home. A friend, whom the Applicant had not seen for approximately a year and a half, offered to drive the Applicant’s vehicle for him. The Applicant asked to see the friend’s licence before agreeing to let him drive. The Applicant testified that he was shown a driver’s licence. The Tribunal notes, however, that the Applicant also testified that he believed the acquaintance was fit to drive. While the Tribunal commends the Applicant for not drinking and driving, the testimony provided to the Tribunal with respect to the Applicant’s capability of determining either the state of the driver or the validity of the driver’s licence was insufficient for the Tribunal to make a determination that he exercised due diligence in accordance with 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 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, presiding Member
RELEASED: April 15, 2013