Licence Tribunal
Appeal d'appel en
Tribunal matire de permis
DATE:
2013-06-20
FILE:
8111/MVIA
CASE NAME:
8111 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
1588574 Ontario Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Chris Wallace, Agent
For the
Respondent: Jay Shanmorgan, Agent
Heard
by teleconference: June 18, 201
REASONS FOR DECISION
A hearing was held on June 18, 2013, to consider the ApplicantÕs appeal pursuant to
section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the ÒHTAÓ or the ÒActÓ).
The Tribunal ordered the Registrar to release the vehicle pursuant to section 55.1(3) of the HTA.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner on the grounds of due diligence and exceptional hardship. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2009, Chev Exp (the vehicleÓ)
Date of Appeal: May 28, 2013
ISSUES
As set out in the ApplicantÕs Notice of Appeal, the owner appeals on the basis that the vehicle owner exercised due diligence to determine that the driver's licence was not suspended as provided in section 50.2(3)(c) of the Act, and that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that:
(a) the Applicant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time in which the vehicle was impounded was not then under suspension;
and/or
(b) the impoundment will result in exceptional hardship?
Evidence for the Applicant
Regarding the ground of due diligence, Mr. Wallace, the principal of the Applicant, said he randomly pulls driver abstracts for its drivers, or employees. He also said the company is subject to seasonal fluctuations in staffing levels when employees are laid off and later recalled.
In this instance, the driver of the impounded vehicle (ÒAGÓ) was originally hired in October 2012 and then laid off in February 2013.
AG was recalled on April 22nd and began work on that day. Mr. Wallace said that while he had asked AG to obtain and provide a driver abstract at that time, AG had not done so by the date of the impoundment, May 17, 2013.
As a result of a vehicle accident on May 17th, the driver of the ApplicantÕs vehicle was found to have a suspended licence and the vehicle was then impounded.
It was then learned that AGÕs licence was initially suspended, as a result of an incident on August 14, 2011, for a period of 90 days. This suspension expired in November 2011 and his licence was then restored.
The 2011 suspension was then reinstated on April 23, 2013, a day after he was rehired by the Applicant.
The suspension reinstatement was the result of AGÕs Criminal Code conviction on the same date (April 23, 2013) regarding the 2011 incident, for having a blood/alcohol level exceeding .08.
Mr. Wallace said he had not been told by AG of the reinstatement of the suspension. He also agreed that his abstract checks of company drivers are randomly timed and he referred to doing these ÒeveryÓ six (6) months.
Concerning the matter of exceptional hardship, Mr. Wallace described his company as a Òsmall, local company with 10-20 employeesÓ. The company adds and lays off employees as seasonal changes impact his business volume.
Mr. Wallace said the vehicle impoundment has created a financial hardship as it was one of three van type vehicles used to get employees to work sites all over Ontario. While he has other vehicles, they are equipment specific with driver space only and he is having difficulty moving employees around job sites.
The past winter season was described as having been exceptionally difficult and that despite the financial hardship, the company had decided to keep employees busy instead of laying them off when there should instead have been layoffs for the savings that would have resulted.
Mr. Wallace said he is also making lease payments for the impounded vehicle and due to the poor winter work season and poor revenues, those payments are now also creating hardship.
In cross-examination, Mr. Wallace replied that he only just learned about the internet access to check a personÕs license status and in future he would be able to make license checks more frequently. It would also be much easier by internet as his business is some distance from the nearest licensing office.
Mr. Wallace also confirmed he has managed to get by for the impoundment period to date but it has been with difficulty.
When advised there was a provision in the Act by which to pursue reimbursement for his costs from AG, Mr. Wallace said he was unable to locate AG despite repeated attempts by telephone and contact through AGÕs parents and expressed no hope of finding AG.
Evidence for the Registrar.
The documents tendered by the Registrar and admitted into the record on consent 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 originally had his driverÕs license suspended on August 14, 2011, on a charge of blood/alcohol content in excess of .08, and reinstated on November 12, 2011; the record also showed the driver was convicted on April 23, 2013, on the same charge and under the Criminal Code of Canada pursuant to which the license suspension of the driver was reinstated until August 25, 2014.
The Registrar called no other evidence.
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 ownerÕs 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 driverÕs 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 driverÕs 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 driverÕs 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 Òdue diligenceÓ 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, Òdue diligenceÓ in BlackÕs 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 Òexceptional hardshipÓ 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 onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)(c) and/or (d) of the Act.
Upon considering all of the evidence and testimony of the Applicant, the Tribunal finds the following:
Regarding exceptional hardship, the Applicant acknowledged there were other vehicles and while he did need the impounded one for employee transportation, he did not provide any specifics to show what losses, if any, occurred due to the loss of use of the impounded vehicle.
The Applicant also stated the impoundment was causing financial stress but he did not produce any substantive evidence to show that actual hardship was being experienced, such as loan or lease payments not being met and the lasting impact that would have.
In the absence of any factual evidence to support the Ôexceptional hardshipÕ claim, the appeal on that basis is found to fail.
Regarding due diligence, the Tribunal refers to the BlackÕs Law dictionary definition of due diligence, with particular consideration of the terms Òmeasure of prudence É ordinarily exercised by, a reasonable and prudent man under the particular circumstances [and] not measured by any absolute standard, but depending on the relative facts of the special caseÓ.
In this case, the facts found are that the Applicant is a small business with seasonal fluctuations in its employee numbers. The Applicant also carries out random abstract checks on its drivers.
As there was no dispute on the ApplicantÕs reference to 6 months as a time frame in which abstracts are ÔpulledÕ, the Tribunal finds, in this specific case, that this is a reasonable cycle for this Applicant to conduct abstract checks.
While the Applicant stated he had conducted a driver abstract check of his employees in September 2012, a month before AG was hired, the Tribunal does note that AGÕs abstract would have shown his licence was reinstated in November 2011 (or valid as the suspension had expired).
On that basis, the Applicant would reasonably have believed that AG had a valid driverÕs licence, even if the abstract had been pulled on April 22, 2013, the day on which AG was called back to work.
The fact the Applicant obtained AGÕs driver abstract on Tuesday, May 21st, days after the impoundment occurred (which was also the beginning of a holiday weekend), is not viewed as a ÔfaultÕ on his part, considering the particular circumstances that this is a Òsmall, local companyÉ [and] Équite seasonalÓ whose staff level fluctuates between 10 and 20 persons through the seasons.
In arriving at its decision to find for the ApplicantÕs appeal on the ground of due diligence, the Tribunal is also guided by the due diligence definition which states that circumstances shouldÉ not [be] measured by any absolute standard and should also consider the relative facts of the special case.
Therefore, and in consideration of the facts that the Applicant:
(1) was reasonably diligent and conducted abstract checks on a random or six month basis;
(2) would have found an abstract record showing AG had a valid driverÕs licence on the day he was called back to work (April 22, 2013);
(3) as a layman, or ordinary person, the Applicant is unlikely to understand more than what is printed in the record he reads - that there is no notation of any kind in AGÕs abstract to indicate that a Criminal Code of Canada conviction and suspension reinstatement was possibly pending;
Given the evidence presented in this matter, and the specific circumstances, the Tribunal finds that on a balance of probabilities the Applicant acted reasonably and does meet the standard of section 50.2(3)(c) of the Act, for due diligence.
DECISION
After considering the evidence, and pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the ApplicantÕs motor vehicle, on the ground of due diligence and directs the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: June 20, 2013