7981 v. Registrar of Motor Vehicles, 2013 CanLII 24101

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-04-30

FILE: 7981/MVIA

CASE NAME: 7981 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: Self-represented

For the Respondent: JAY SHANMORGAN, Agent

Heard by teleconference: April 24, 2013

REASONS FOR DECISION

A hearing was held on April 24, 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”).

By Order dated April 25, 2013, the Tribunal ordered the Registrar to release the vehicle, with written reasons to follow. The following are those reasons for the decision.

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: 2002 MAZD TRI (the “vehicle”)

Date of Appeal: March 21, 2013

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

The Applicant was asked to fax a letter from the Insurance provider proving that he was in fact insured.

ISSUES

As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the driver's licence was not under suspension, 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) (b) (c) and (d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis 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 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 Applicant pleads for the return of his vehicle as upon his return to Ontario from Alberta he checked with Service Ontario in London to find out when his Alberta suspension would be over. At that time he was told he was not suspended in Ontario.

The Applicant explains:

• that he purchased a vehicle and was able to register it using his driver’s licence.

• when he was stopped by the police the computer still showed his Ontario driver’s licence as valid.

According to the Applicant he is single parent on a “lower income” and cannot afford the cost of the “towing and impoundment” of the vehicle.

Documentation received by the Tribunal on April 24, 2013 indicate that the applicant was indeed able to obtain automobile insurance.

At the hearing the Applicant reiterated his reasons for appeal as stated in the Notice of Appeal, confirming that he was assured by Service Ontario in early November that his licence was not suspended. Around the end of November, once again enquiring if his licence was under suspension, given his two convictions in Alberta, he was able to purchase and register a vehicle.

According to the Applicant, since he did not remember the dates of his suspension, he was still being cautious and asked a friend to drive for the first three weeks he owned the vehicle. He subsequently purchased a second vehicle which he was able to register.

The Applicant asserts that he exercised due diligence as he checked several times with Service Ontario and was assured that his licence was not under suspension. Further it took the police a couple of hours to figure out whether or not he was suspended, as well the Applicant argues that the changes to his abstract were made after his being stopped and the vehicle impounded.

In cross-examination, the Applicant confirmed that he obtained an Ontario licence in 2010 prior to moving to Alberta, and that licence was never taken from him, thus, when he believed his suspension in Alberta was over, and after checking with Service Ontario, he resumed driving.

The Applicant attested:

• that he did not remember the dates of his conviction as he was severely depressed at the time and on medication

• that he did not have information regarding his prohibition orders as he was robbed

• that he called Service Ontario, and not Alberta, because he now resides in Ontario.

• that he fully disclosed information about his Alberta conviction to Service Ontario

The Applicant stated that he is working and either takes a bus or relies on people he works with.

There are 911 services available in the Applicant’s area.

The Applicant called a witness who testified that he can confirm that he saw the Applicant’s vehicle registration documents given him by Service Ontario, and that he drove the Applicant around, while he believed that he was not able to drive.

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 Blood/Alcohol content in Excess of .o8 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for Life.

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:

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) (b) (c) and (d).

Issue 1 Should the Tribunal order the Registrar to release the motor vehicle on the basis 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 made was not then under suspension?

Section 41 of the Act identifies the type of appeals for which a licence is suspended in sections 41(1)(a), (b), (c), (d), and (e) and 41(7) and 42(1) and 42(5) as follows:

41.(1) Subject to subsections 41.1 (1), (2) and (3), the driver’s licence of a person who is convicted of an offence,

(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;

(b) under section 249, 249.1, 249.2, 249.3, 249.4 or 252 of the Criminal Code (Canada) committed while driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle;

(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(c) under section 254 of the Criminal Code (Canada) committed in relation to,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or

(ii) operating or having the care or control of a vessel within the meaning of section 48;

(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40; or

(e) referred to in a predecessor to this sub-section,

is thereupon suspended ....

42.(1) The driver’s licence of a person who is convicted of an offence under subsection 259 (4) of the Criminal Code (Canada) or under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40 is thereupon suspended for a period of,

(a) upon the first conviction, one year; and

(b) upon a subsequent conviction, two years,

in addition to any other period for which the licence is suspended and consecutively there to.

(4) This section applies in the same manner as if a person were convicted of an offence if the person pleads guilty to or is found guilty of an offence referred to in subsection (1) and,

(a) an order directing that the accused be discharged is made under section 730 of the Criminal Code (Canada) or under a provision that is enacted by a state of the United States of America and that is designated by the regulations; or

(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders Act (Canada) or a youth sentence is imposed under section 42, 59, 94, 95 or 96 of the Youth Criminal Justice Act (Canada) or an adult sentence is imposed under the Youth Criminal Justice Act (Canada), including a confirmation or variation of the disposition or sentence.

Issue 2 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 3 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 emphasized that he had no knowledge of the suspension, since he received no letter from the Ministry, and was told several times by Service Ontario that he was able to drive. According to the Applicant he was advised by the Ministry of Transportation that the entry showing the life suspension was not entered until late March 25, 2013, which was well over a month after the impoundment date.

The Registrar’s Agent noted that the Applicant appealed on the basis that the driver's licence was not under suspension, 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 Ministry does not sympathize with an Applicant who puts himself and the public at risk. The law is designed to keep dangerous driver’s off the road, and to promote compliance. According to the Registrar’s Agent it is obvious by the documentary evidence that the Applicant knew of his conviction but chose not to comply.

The Registrar’s Agent expounds that the Applicant “knew he was going to be convicted in the province of Alberta, which is why he moved to Ontario, and exchanged his licence prior to being convicted in the province of Alberta.”

Further, the Registrar’s Agent noted that the registration of a vehicle has nothing to do with the driver’s licence, as anyone can register a vehicle without having a licence.

The Registrar’s Agent pointed out that the Applicant has been able to get to work with the help of his friend and co-workers or by using public transportation.

The Registrar feels that the Applicant did not establish the grounds for appeal and requests the Tribunal confirm the impoundment.

In rebuttal the Applicant argued that to the best of his knowledge it is not possible to obtain insurance and register a vehicle without a valid driver’s licence. Thus, the Applicant asserts that he did all that he could to exercise due diligence.

The Tribunal will first address the Applicant’s appeal under section 50.2(3)(b) of the Act:

“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”.

Although the Applicant was misled, there is no doubt that the Applicant’s licence was in fact under suspension at the time, of the impoundment. Thus the Tribunal has no alternative but to find that the criteria for appeal under 50.2(3)(b) of the Act was not met.

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.

The Tribunal cannot reach a decision based on conjecture or speculative opinions. The Registrar’s Agent suggests that the Applicant actions were premeditated. The Tribunal has no such evidence and therefore cannot accept this premise.

The undisputed facts are that the Applicant contacted Service Ontario several times and was told that his licence was not under suspension. Thus, the Tribunal is satisfied that the Applicant did all he could do to ensure he was not under suspension in Ontario. Not only did he attend Service Ontario several times to enquire but he was also able to purchase, insure and register the vehicle using his driver’s licence.

The Applicant’s argument that there were no suspensions registered against him in Ontario is substantiated by the fact that the police were not able to find a suspension registered with the Ministry, and that the life suspension now registered in the Applicant’s abstract was not added until after the impoundment.

Given these particular facts, the Tribunal concludes that the Applicant can be said to have exercised due diligence pursuant to section 50.2(3)(c) of the Act.

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. Thus, 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: April 30, 2013