Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 7891/MVIA
CASE NAME: 7891 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: Terrance A. Sweeney, Vice-Chair
APPEARANCES:
For the Applicant: Pasquale Perrelli, Agent
For the Respondent: Sonia De Santis and Jay Shanmorgan, Agents
Heard in Toronto: February 27, 2013
REASONS FOR DECISION
A hearing was held on February 27, 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: 1996 Honda UCC (the “vehicle”)
Date of Appeal: February 7, 2013
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.
The owner also appeals under section 50.(3)(d) of the Act that the loss of the vehicle will result in exceptional hardship.
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 lives in Brampton with her family but works in Milton. She had known the driver of the impounded vehicle ("GV") for three weeks. On the night of February 1, 2013, she was at a friend's house and GV was to meet her there to go out to Boston Pizza. The Applicant had twisted her foot at work that day. GV offered to drive her car. She asked if he had a licence. He produced one. She inspected it and it appeared to be valid. On the way to the restaurant, a police officer pulled them over. The police officer informed her that GV’s licence was under suspension and he would be impounding her vehicle.
She testified that she needs her car to get to work and that it takes two hours by bus to get to work. Her mother needs her to drive her to doctors’ appointments and to the hospital.
On cross examination, she admitted that she is the registered owner of two other vehicles: a 2002 Ford and a 1992 Honda Civic. She said that her cousin, who lives five minutes away, is the primary driver of the 1992 Honda .The transmission on the 2002 Ford needs repair and she is not driving it. She has been getting rides to work from friends but this could not continue.
The Agent for the Registrar suggested that it was not wise of her to lend her car to GV whom she had known for only three weeks. She agreed.
She said that it was not practical for her cousin to drive her to work as he works in Brampton and she lives in in Milton.
She said on cross examination that she did not know that the MTO has a 24 hour hotline that she could have called to check up on GV's licence.
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 HTA 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 driving while licence suspended under the HTA pursuant to which the driver’s licence of the driver was then under suspension until November 17, 2016.
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 bases of sections 50.2(3) (c) and (d).
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.
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 has failed to establish her case on a balance of probabilities.
Due Diligence:
The evidence before the Tribunal is that the Applicant checked the licence of GV. It appeared to be valid. On cross examination she agreed that it was imprudent of her to let GV drive her motor vehicle when she had known him for only three weeks. A reasonably prudent person would not have done so.
Exceptional Circumstances:
The Applicant has alternative vehicles available to her. She could retrieve the 1992 Honda from her cousin. No evidence was offered as to why this might not be done save for a brief reference by the Applicant to "inconvenience" and "difficulty". When there is a reasonable alternative available to an applicant, as there is on these facts, any ‘inconvenience’ as a basis of exceptional hardship, cannot, pursuant to the legislation, be considered by the Tribunal.
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
Terrance A. Sweeney, Vice-Chair
RELEASED: March 12, 2013