7867 v. Registrar of Motor Vehicles, 2013 CanLII 5996

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-02-12

FILE:

7867/MVIA

CASE NAME:

7867 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 Applicants:

Self-represented

For the Respondent:

SONIA DE SANTIS, Agent

Heard by teleconference:

February 7, 2013

REASONS FOR DECISION

A hearing was held on February 7, 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”).

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: 2002 DODG DUR (the “vehicle”)

Date of Appeal: January 22, 2013

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

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 written submission filed with the Tribunal in support of the appeal was entered as Exhibit #1. The Applicant pleads for the return of the vehicle as she lent the vehicle to her neighbour in good faith, after having asked and being shown a driver’s licence, which she accepted as being valid. The Applicant further maintains that the loss of the vehicle will cause exceptional hardship, in that the vehicle is needed for daily transportation and, more specifically, for her to get to various regular doctors’ appointments.

At the hearing, the Applicant reiterated that the loss of vehicle is hardship for her as she cannot either afford taxis or buses. According to the Applicant, she is on medication and needs to see her physician frequently. The Applicant confirmed that although, she did not look at the expiry date, she had seen her friend’s licence and understood it to be valid.

In cross-examination, the Registrar’s Agent questioned the Applicant as to whether she noticed that the expiry date on the licence was March 2012. The Applicant reiterated her assertion that she had seen the licence, but did not look at it closely, as the person who asked to borrow her car is a good friend.

The Applicant admitted that she did not know enough to check the expiry date, and that she was unaware of the fact that she could contact the Ministry of Transportation to verify the validity of a licence.

Since the impoundment, the Applicant has had to take the bus to get her groceries and go around town. According to the Applicant, any mode of transportation such as taxis would be beyond her income level. Further she has no family or friends who can assist.

The Applicant affirmed that she has continued to receive her medications as for the time being, her physician has been accommodating by talking to her on the phone. Nonetheless, the Applicant has been informed that this is a temporary measure.

The Applicant testified that she will not be able to afford the impound fees. The Registrar’s Agent referred the Applicant to the section of the Act that allows the Applicant to bring a lawsuit for costs, against the disqualified driver.

By way of clarification, the Tribunal asked the Applicant to confirm the number of appointments missed. According to the Applicant, she missed two medical appointments as she had no money to cover the cost of travel to go and see her doctor. The Applicant was still able to obtain a renewal of the prescriptions as she spoke to the physician on the telephone. The next medical appointment will be March 11, 2013 at 2pm.

The Applicant testified that she has 911 services in her area.

The Applicant‘s first witness was the disqualified driver. He testified that he borrowed the vehicle and assumes full responsibility for having deceived the Applicant who he considers his friend. According to the witness, he intends to borrow as much money as he can to contribute towards the cost of the impoundment.

In cross-examination, the witness acknowledged his responsibility, and confirmed that in fact he has borrowed the car on other occasions.

The Applicant called a second witness who testified that she has recently started dating the disqualified driver, and that she was unaware that he was suspended. The witness feels that she too was deceived as she would not even have gotten in the car had she known he was suspended. She also asserted that she will use her resources to try to assist the Applicant with the costs of retrieving the vehicle from the impound facility.

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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 3, 2013.

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 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 reiterated her plea to have the truck returned, as she was unaware of the procedures, and was just trying to help out her friend.

The Registrar’s Agent noted that the Applicant appealed on two of the four grounds for appeal: due diligence and exceptional hardship.

According to the Registrar’s Agent, exercising “due diligence” requires that the owner of the vehicle “do something” to protect the vehicle from being driven by unlicensed drivers. There is no evidence to suggest that the Applicant made any efforts to verify the validity of the licence of the person she allowed to drive her vehicle, other than glancing at it casually. She did not even look at the expiry date.

As for exceptional hardship, the Registrar’s Agent contends that the Applicant has utilized the bus to get to the grocery stores which constitutes an alternate mode of transportation. .

Health and safety has not been affected, according to the Registrar’s Agent, as the physician has been able to speak with the Applicant and renew her prescriptions.

Since the Applicant is receiving ODSB payments, and has continued to do so,, the Registrar’s Agent maintains that there has been no loss of income.

In summary, the Registrar’s Agent asked the Registrar’s order to impound be confirmed.

The onus is on the Applicant to establish that the licence was not suspended at the time of impoundment, that due diligence was exercised and that the impoundment will result in exceptional hardship, as grounds of appeal, as provided in sections 50.2(3)(c) and (d) of the Act, respectively.

The Tribunal will first address the matter of due diligence; section 50.2(3)(c) of the Act prescribes:

(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 in respect of which the order was made was not then under suspension;…

Legislation intends that owners of motor vehicles attempt to determine that the licence of the person who is to drive the owner’s car is not under suspension.. The courts have held that to rely on a defence of due diligence, 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.

It appears that the Applicant was deceived by the disqualified driver and unaware of the suspension. In her testimony, the Applicant attested that she glanced at the licence but did not verify the expiry date. In fact, according to the driver, this was not the first time he had driven the Applicant’s vehicle. Had the Applicant examined the licence, rather than giving it a cursory glance, she would have been made aware of the fact that it was expired.

Given the evidence on in this matter, the Tribunal finds that the Applicant does not meet the standard of section 50.2(3)(c) of the Act.

With respect to exceptional hardship, the onus is on the Applicant to establish that the loss of the impounded vehicle will cause exceptional hardship, as provided in section 50.2(3)(d) of the Act.

It does not suffice to argue financial loss in order to establish financial hardship. As stated by the Registrar’s Agent, the legislation requires the Tribunal to assess certain facts according to section 10 of Regulation 631/98, which 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…

10.3 (b) the loss will be immediate, significant and lasting;

Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. The Tribunal heard evidence that, albeit at an inconvenience, the Applicant does have public transportation in her area, which she has utilized. Thus the Applicant dos have alternate modes of transportation available to her.

In considering health and safety, while is true that the Applicant has missed two medical appoints her medication has not been affected. The attending physician has accommodated by reviewing, on the telephone, any possible side effects the Applicant could be experiencing prior to order a renewal of the prescriptions.

Given that the Applicant receives ODSB payments and this appears to be unaffected by these events, the criteria of losses being significant and lasting, is also not met.

Since the Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses, the Tribunal must find that the Applicant does not meet the criteria under in section 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

Antoine Aouad, M.D., Presiding Member

RELEASED: February 12, 2013