Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8263/MVIA
CASE NAME: 8263 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: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Victoria Sim, Agent
Heard by teleconference: August 21, 2013
REASONS FOR DECISION
A hearing was held on August 21, 2013, at Toronto, Ontario, by teleconference 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 ORDERED THE REGISTRAR TO RELEASE THE MOTOR 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: 1998 Ford Win (the “vehicle”)
Date of Appeal: August 2, 2013
ISSUES
As set out in the Applicant’s request for hearing, 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, 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 testified that he was not aware that his driver’s licence was under suspension and indicated that his job, working on a farm, required a valid driver’s licence in order to operate various farm vehicles. The Applicant explained that on June 4, 2013, with representation from Counsel, he pled guilty to an offence stemming from events which took place in November, 2000. He did not attend Court but Counsel agreed to payment of a series of fines within a fixed period of time. The Applicant understood that no driving prohibition was imposed by the Court. In this regard, the Applicant submitted a letter with from his Counsel dated June 13, 2013 (Exhibit 1) which states:
With regard to the Driving Prohibition being sought for a duration of 12 months...in due course, success was had in terms of avoiding any driving prohibition being imposed.
The Applicant did not deny that he received a letter from the Ministry of Transportation (Exhibit 3) which advises that his driver’s licence was suspended on June 4, 2013. He testified that he did not immediately open the letter but that after reading it approximately a week after its receipt, he called the general telephone number of the Ministry of Transportation which is included in the letter. He stated that the person to whom he spoke identified himself as a temporary employee of the Ministry and advised the Applicant that he was not on suspension but rather a suspension was ‘pending’ because of approaching due dates for fines which remained outstanding. The Applicant was advised that he could submit a motion for an extension of the payment time which he subsequently did.
The Applicant testified that he also contacted his Counsel who confirmed that the Court had ordered no driving prohibition and advised the Applicant that the letter from the Ministry of Transportation was likely an administrative error. The Applicant therefore believed that his driver’s licence was valid.
The Applicant testified that he would not drive without a valid licence. As a result of the impoundment and the discovery that his licence is in fact suspended, the Applicant lost his job. The Applicant and his wife have five children under the age of 14 and are expecting the birth of their sixth child in August, 2013. The Applicant’s wife does not work. Since losing his job, the Applicant has enrolled in an education program.
Since the impoundment of the vehicle, the Applicant and his wife have established a new budget and routine and provided the example of how they have established a schedule to take the bus to food banks. He testified that the family is either walking or using public transportation because taxis are too expensive. They have had occasional help from his wife’s sister and from a friend. The sports activities and music lessons which their children were involved in have all been cancelled. The Applicant noted that while bus service is available, that it is difficult for his wife to use this service and will become more difficult with a one year old child and a newborn due any day. He indicated that when school begins his children will be required to walk to school, noting that their home is a significant walk for small children but still too close for school bus service.
The Applicant’s wife testified that she has a valid driver’s licence and needs the vehicle for family use. She confirmed the Applicant’s testimony with respect to the family situation.
911 emergency service is available in the municipality in which the Applicant and his family reside.
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 failing to attend at the scene of an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 4, 2014.
The Registrar also submitted a copy of a letter from the Ministry of Transportation sent to the Applicant advising him that his driver’s licence was suspended and a copy of the signed proof of receipt from Canada Post.
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
Due diligence requires that an individual show he took all reasonable steps to prevent non-compliance with the law. In this case, the Applicant believed that his licence was valid, having received a letter from his Counsel indicating that the Court had imposed no driving prohibition. The Agent for the Registrar argued that the Applicant was almost immediately thereafter informed of his licence suspension by the Ministry. The Applicant does not deny that he received a letter from the Ministry. However, because that letter was in conflict with what his Counsel advised the Court’s decision had been, the Applicant called both the Ministry and his Counsel to attempt to clarify his situation. He testified that Ministry staff advised a suspension was pending due to the non-payment of fines and the Applicant subsequently filed a motion for extension of time to address this. While the Agent for the Registrar indicated that the status of an individual’s driver’s licence would be visible to Ministry staff, the Tribunal does not find it unreasonable that the Applicant believed his licence was valid after speaking to Ministry staff. It is not inconceivable that the Applicant could have been speaking to his current status at the same time the Ministry staff member to whom he spoke could have been speaking about a potential further suspension for non- payment of fines. When the Applicant spoke to his Counsel, he was advised that the Ministry letter was likely an administrative error.
The Applicant now understands that his driver’s licence was in fact suspended on June 4, 2013. However, the Tribunal finds that the Applicant did have valid reasons for believing his licence was current before his vehicle was impounded, notwithstanding the fact he was in receipt of a letter from the Ministry of Transportation. By contacting both his Counsel and the Ministry, the Applicant did take reasonable steps to clarify the status of his licence and therefore to prevent non-compliance with the law.
The Tribunal therefore finds that, in accordance with section 50.2 (3)(c) of the Act, the Applicant did exercise due diligence. The Tribunal therefore does not need to address the issue of exceptional hardship.
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
Mary Ann Spencer, Presiding Member
Released: August 23, 2013