7980 v. Registrar of Motor Vehicles, 2013 CanLII 21159

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-04-12

FILE: 7980/MVIA

CASE NAME: 7980 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: Michael Benoit, Agent

For the Respondent: Jay Shanmorgan, Agent

Heard in Toronto April 8, 2013

REASONS FOR DECISION

A hearing was held on April 8, 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 CONFIRMS THE IMPOUNDMENT. 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: 2004 PONT GAM (the “vehicle”)

Date of Appeal: March 19, 2013

All documents were entered into evidence as exhibits with the consent of both parties.

The Tribunal extended a period of grace, to both parties until the end of the next business day, to provide documentary evidence of the issues raised at the hearing. The Registrar was required to provide proof that a Notice of Suspension was indeed forwarded to the Applicant in 2011. The Applicant was required to submit proof of the 2011 court order showing a two years suspension.

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 vehicle was impounded on March 8, 2013 because his licence was under suspension at the time. It had been suspended on March 4, 2011 for a period of three years.

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 his vehicle as the suspension of his licence “effectively ended March 4, 2013”. The Applicant maintains that he did not receive a notice of suspension, and argues:

“I do not have any knowledge as to how my licence could still be suspended even after I served the sentence that was ordered by the court at the time of sentencing.”

The Tribunal also reviewed the submissions forwarded after the hearing with respect to the disposition of charges. The documents deal with the charge laid on March 08, 2013, for which according to the letter from Mr. Benoit the Applicant needs to attend court on April 12, 2013. The Applicant did not submit the 2011 court order that allegedly suspended his licence for a period of two years ending March 4, 2013.

At the hearing the Applicant testified that although he was represented by counsel in 2011, there was no consultation as to the outcome. The Applicant asserted that he was given a two year suspension by the court, and that he was convinced he was able to drive, once the term was up, since his licence was never seized. The Applicant avowed that the only notice he received from the Ministry, indicating his licence was still under suspension, was a letter date March 04, 2013 which he received on March 16, 2013.

The Applicant confirmed that he has entered into a plea bargain with respect to the new charges of driving while suspended, laid on March 08, 2013. He has agreed to pay a $1,000.00 fine and add a further six months to the suspension.

In cross-examination, the Applicant confirmed that he has been living at the same address for ten years, and that he only received a package from the Ministry of Transportation on March 16, 2013 advising him of the requirement to complete the Remedial Measures Programme.

The Applicant confirmed that the first time he was convicted that he had to attend a remedial driving programme, as well as having to install an ignition interlock in his vehicle. The Applicant affirmed that he believed the same conditions were not required after the second conviction, as his licence was never confiscated.

The Applicant further stated that: for the past two years the Applicant has been driven to work either by his wife, or someone else, such as a friend or family member; his wife is a nurse who works shifts; there is public transportation in the area which can also be used.

In redirection, Applicant confirmed that he works from 10:30 PM to 6 AM.

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 Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 4, 2014.

A fax from the Ministry of Transportation, received by the Tribunal on April 9th, 2013 indicates that a Notice of Suspension was sent to the Applicant’s address on “2011/01/15”. The notice of suspension confirms a three year suspension and the requirement for a remedial driving programme prior to the reinstatement of the licence.

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 vehcile 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 closing, the Applicant‘s Agent emphasized that the Applicant had no knowledge of a three year suspension. In 2009 the Applicant was convicted and received a two year suspension according to the Applicant’s testimony.

According to the Applicant’s Agent the Applicant has taken it upon himself to resolve the matter of the new charges by entering into entered into an agreement with the Prosecutor and consenting to pay a $1,000.00 fine and a further suspension for a period of 6 months.

The Applicant‘s Agent contends that since the vehicle remains impounded both the Applicant and his wife are having difficulty getting to and from work, since there is no public transportation available in the early morning hours. This situation together with the extra expenses incurred by the Applicant places the Applicant in a “double jeopardy” bind, which sustains the exceptional hardship grounds for appeal.

The Registrar’s Agent noted that the Applicant appealed on due diligence, and exceptional hardship. The Registrar’s Agent argues that the grounds for exceptional hardship should not be considered as the Applicant is still under suspension.

Furthermore, according to the Registrar’s Agent, the Applicant acted solely on assumption rather than on exercising due diligence to ascertain whether he was still prohibited from driving. With respect to not receiving the original notice the Registrar’s Agent notes that the Applicant has confirmed receiving all other correspondence from the Ministry, therefore the argument that he failed to receive the crucial piece of evidence is not convincing.

Prior to setting out the reasons for decision the Tribunal will comment on the documents requested by the Tribunal and received after the hearing.

First, albeit there is no proof that the Applicant received it, there appears to be evidence that the Ministry did in fact send out a Notice of Suspension on “2011/03/15”.

The documents received from the Applicant’s Agent deal solely with the charge laid on March 08, 2013, and are therefore irrelevant to these proceedings, other than to support the Applicant’s Agent contention that the Applicant is in the process of dealing with the issue.

The onus is on the Applicant to establish due diligence as provided in sections 50.2(3)(c) of the Highway Traffic Act.

The 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 is a valid licence. 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.

In this case, the Tribunal concurs with the Registrar’s Agent in that it appears that the Applicant simply made assumptions as to the validity of his driver’s licence. The Applicant testified that he did not contact the Ministry of Transportation, presuming that he was able to drive after the expiration of two suspension imposed by the Court. The Tribunal would be disposed to accept this argument had the Applicant made any attempt to provide the Tribunal with a copy of court documents from 2011, proving the Judge’s order for a two-year suspension.

Thus, given these particular facts, the Tribunal concludes that the Applicant cannot be said to have exercised due diligence pursuant to section 50.2(3)(c) of the Act.

With regards to exceptional hardship, the onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.

Section 10 of Regulation 631/98 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…

No evidence was introduced to support the grounds of exceptional hardship. The only comments introduced were those of Applicant’s Agent regarding the lack of public transportation in the early morning hours, and the “double jeopardy” facing the Applicant with respect to expenses. Yet, it was confirmed that both the Applicant and his wife are still working.

Nonetheless, the Tribunal may consider exceptional hardship, only if no alternative mode of transportation exists.

Albeit inconvenient, there are alternate modes of transportation available to the Applicant. Family and friends have driven the Applicant, as well as there is public transportation available.

Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.

As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.

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: April 12, 2013