Licence Appeal Tribunal
FILE: 7926/MVIA
CASE NAME: 7926 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.
7926 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: ANTOINE AOUAD, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: SONIA DE SANTIS, Agent
Heard in Toronto March 13, 2013
REASONS FOR DECISION
A hearing was held on March 13, 2013, 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”).
Pursuant to section 50.2 (5) the Tribunal ORDERS THE REGISTRAR TO RELEASE THE VEHICLE.
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: 2005 CHEV EQU (the “vehicle”)
Date of Appeal: February 25, 2013
It should must be noted that upon clarification by the Tribunal, the Applicant requested that the grounds for appeal be amended to include due diligence. Having raised an objection arguing that the Registrar had received no prior notification and she was therefore, not prepared to deal with the issue due diligence. The Tribunal suggested to take a recess for couple of hours but the Registrar’s Agent agreed to continue.
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 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 Notice of Appeal, the Applicant pleads for the return of the vehicle on the ground that:
- she is a single mother to two children;
- the vehicle is needed for the Applicant to get to and from different job locations in order to carry out her business;
- she was ill and asked her boyfriend’s brother to take her to the doctor;
- she was not aware someone else had been allowed to drive the car;
- she will be unable to cover the cost of the impoundment.
During the hearing, the Applicant confirmed that she is a single mother, who is asthmatic as are her children. According to the Applicant she left the car at her boyfriend’s family’s house, and asked her boyfriend’s brother to drive her car and her children to her place and then take her to the hospital, but somehow the suspended driver got to be behind the wheel.
The Applicant attested that she does not have the money to retrieve the car, and has difficulty trying to make ends meet. Without the car, the Applicant affirmed, she would suffer exceptional hardship as would the children.
In cross-examination, the Applicant confirmed that she has not been “working much” since the impoundment, and when she needs to go out she either uses the TTC or asks to be taken.
The Applicant maintained she is a student who has her own cleaning business, nonetheless upon questioning by the Registrar’s Agent, she admitted that she is not currently going to school nor does she plan to return until September. As far as the cleaning business is concerned, the Applicant confirmed that she has been cleaning residences for approximately four months. Although she has been getting calls, the Applicant asserted that she has not been able to work since the impoundment.
The Applicant explained that when she works she takes the necessary supplies with her, therefore it is difficult for her to use public transportation, particularly with the large machines required for carpet cleaning. Further, according to the Applicant it would be difficult to take her child to day care and go to work. The Applicant is also concerned about safety, if she is not familiar in an area, she feels safer using her own vehicle.
The Applicant asserted that her son has been missing school but clarified that both her and the children were sick. The Applicant’s mother drove her and the children to medical appointments. According to the Applicant since she has been mostly at home she takes care of the child that would normally attend daycare.
The Registrar’s Agent asked the Applicant how she has been getting groceries, the Applicant replied that she pays her mother to driver her.
The Applicant admitted that the suspended driver has indicated that he will assist in covering costs, but the Applicant is doubtful.
Although the Applicant stated she did not have knowledge of the details surrounding the suspension, she was aware of her boyfriend’s suspension. According to the Applicant that is the reason that she asked his brother to take the car and the children to her place.
According to the records the Applicant owns another vehicle, nonetheless the Applicant claims to have sold the vehicle.
With respect to the grounds of due diligence, the Applicant was adamant that she would not have let her boyfriend drive, and that she asked a licenced driver to drive her vehicle. She asserted she had no control over what transpired.
There are 911 services in the area.
The Applicant was asked by the Registrar’s Agent how she applied due diligence, the Applicant reiterated her previous statement that she knew her boyfriend was not allowed to drive and that is the reason she asked his brother to drive her car. She felt comfortable enough with her boyfriend’s brother driving that she fell asleep at home waiting for him.
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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 2018.
The Registrar did not call any witnesses.
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 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
In her summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
With regards to exceptional hardship, the Registrar’s Agent, points out that there are alternate modes of transportation available to the Applicant. The Registrar’s Agent maintained that the Applicant has been able to get around since the impoundment of the vehicle: she has paid her mother to drive her to meet her needs; the children have been able to get about as well, missing school not because of lack of a vehicle but rather because they were sick.
The Registrar’s Agent argued that the Applicant has chosen not to use public transportation that is available to her to get to and from work, opting instead not to work. Thus, financial losses cannot be considered as the Applicant admitted to having requests to work which she refused to accept.
There have been health issues, in that we heard testimony that both the Applicant and her children were sick, yet, the Registrar’s Agent emphasized that there were no consequences, as the Applicant was able to get to medical appointments.
Regarding the issue of due diligence, the Registrar’s Agent is adamant that given the fact that the vehicle was left at her boyfriend’s family dwelling, the Applicant could not have exercised due diligence to ascertain that the person found to be driving the vehicle had indeed a valid driver’s licence.
In rebuttal the Applicant emphasized that it is not easy to lug around carpet cleaning equipment plus the two children. Regarding due diligence the Applicant is insistent that it is not fair for her to be punished because she made sure that she gave her key to someone who had a licence, whatever happened was totally beyond her control.
The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)(c) or (d) of the Act.
While the due diligence ground for appeal was added at the hearing, in spite of the Registrar’s Agent objection, there was no request that the matter be set down for a few minutes or adjourned. Thus, the Tribunal is prepared to accept the evidence put forward by the Applicant that the person to whom the vehicle was entrusted was, in fact, licensed.
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 license 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.
The Registrar’s Agent suggested that the Applicant could not have exercised due diligence in that she was not present when the vehicle was taken by the suspended driver. The Applicant maintains that she left the vehicle with a licenced driver whom she expected to be the driver.
The Tribunal finds on the evidence that the Applicant was not responsible for the suspended driver’s actions, actions which, she could not have predicted nor controlled. Further, the Tribunal finds that by leaving and asking a licenced driver to assume care and control of her vehicle exercised due diligence.
Thus, given the evidence, the Tribunal finds that the criteria of section 50.2 (3)(c) are met.
As such the Tribunal finds that the factor set out in criteria of section 50.2(3)(c) of the Act has been met and the appeal succeeds on that ground. As such, the Tribunal does not need to consider the exceptional hardship ground.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: March 20, 2013