Licence Appeal Tribunal
FILE: 8032/MVIA
CASE NAME: 8032 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.
8032 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: Victoria Sim, Agent
Heard in Toronto: May 2, 2013
REASONS FOR DECISION
A hearing was held on May 2, 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: 2011 Nissan JUK (the “vehicle”) Date of Appeal: April 17, 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 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.
In this case, the suspended driver is the Applicant’s son and the impounded vehicle was purchased by the Applicant for her son’s use. On April 19, 2013, the Applicant’s son was stopped by police because he was using a cell phone while driving. The Applicant testified that when he was asked to open the door of the vehicle by police, her son panicked and drove away. He subsequently turned himself into police.
The Applicant testified that her son has a language impairment. He has an articulation problem and has difficulty reading, needing to read documents many times before he fully understands them. Both the Applicant and her son misunderstood the Prohibition Order issued by the Ontario Court of Justice on October 2, 2012 (Exhibit 4) and believed that the son’s driver’s licence was suspended for only three months. The Applicant admitted that after subsequently reading the second page of this document, she understood her son’s licence was in fact suspended until October 2, 2013. On cross-examination, she indicated that she did not see the October 5, 2012 Notice of Suspension issued by the Registrar of Motor Vehicles which was mailed to and signed for by her son and that she had made no further attempts to determine the status of his licence.
The Applicant has recently become divorced and has experienced both health issues which prevented her from working until January, 2013 and financial issues. She works in a commissioned sales position and her income can vary considerably. She and her son now live with the Applicant’s father. Notwithstanding his language difficulties, the Applicant’s son successfully completed a business diploma and now works in a sales position.
The Applicant owns both the impounded vehicle and a second, older vehicle. She purchased the impounded vehicle for the use of her son to both look for work, and since his employment, for transportation to and from his workplace. The Applicant uses the older vehicle to reach her workplace. Since the impoundment, she has been driving her son to and from his workplace and to any appointments he may have. The Applicant’s father also owns a vehicle but the Applicant testified that this vehicle is used by her father exclusively and is not available for her or her son’s use. The Applicant testified that notwithstanding his age, she has put her son on a number of restrictions to ensure he has no further issues with the law.
The Applicant stated that she is in a precarious financial position and wishes to sell the impounded vehicle both to pay for its impoundment fees and to pay the court costs her son has incurred.
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 dangerous driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 2, 2013.
The Registrar also submitted a certified copy of a Notice of Suspension dated October 5, 2012 which indicates that the suspended driver’s licence is suspended for a period of one year effective October 2, 2012. A copy of the Canada Post delivery document was also submitted. This indicates that the suspended driver signed for the Notice on October 11, 2012.
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
The Applicant appealed on the grounds of due diligence and exceptional hardship. With respect to the issue of due diligence, the Applicant testified that she believed her son’s licence to have been suspended for only three months based on her reading of the first page of the Prohibition Order issued by the Ontario Court of Justice. The Applicant did not read the second page which she admitted set out that her son’s driver’s licence was in fact suspended for one year.
Due diligence requires that an individual exercise care and attention: in this case, the Applicant acknowledges that she did not read the complete Prohibition Order issued by the Court. Rather, her determination of the status of her son’s driver’s licence was based on an incomplete reading of the document and on her knowledge that her son was taking the courses required for reinstatement of his licence. While the Tribunal acknowledges the Applicant’s testimony with respect to the efforts she is now making to ensure her son has no further issues with the law, she also testified that she made no further efforts to determine the status of her son’s licence and was unaware of the Notice of Suspension mailed to him. Reading only part of the Court document does not comprise due diligence and the Tribunal therefore finds that the Applicant’s appeal fails on this ground.
With respect to the issue 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.
The Applicant testified that she owns both the impounded vehicle which she purchased for her son’s use and a second vehicle which she herself uses. Since the impoundment, the Applicant has continued to use her vehicle as she normally would. She also uses it to drive her son to his workplace and appointments. The Applicant testified that she is in a poor financial position and that she wishes to sell the impounded vehicle in order to pay for both the impoundment costs and the court costs incurred by her son.
The Tribunal may only consider a financial loss to any person if there is no alternative to the impounded vehicle available. In this case, the Applicant owns and uses a second 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.
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: May 3, 2013