7830 v. Registrar of Motor Vehicles, 2013 CanLII 5997

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-01-30

FILE:

7830/MVIA

CASE NAME:

7830 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:

Christopher Holder, Agent

For the Respondent:

Sonia De Santis, Agent

Heard in Toronto

January 18, 2013

REASONS FOR DECISION AND ORDER

A hearing was held on January 18, 2013, 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 ORDERED THE REGISTRAR TO RELEASE THE MOTOR 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. The owner, motor vehicle, and date of appeal in this matter are as follows:

Owner: The Applicant

Motor Vehicle: 2007 HINO HIN (the “vehicle”)

Date of Appeal: December 24, 2012

The Applicant’s Agent explained that the owner of the corporation being unable to attend the hearing prepared an affidavit which he sought to enter into the record.

As the Registrar’s Agent raised no objection, the document was admitted.

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

It was noted that the grounds for appeal fell within the criteria of section 50.2(3)(c) as well as section 50.2(3)(d). Thus, the Applicant’s Agent was given the opportunity to amend the Notice of Appeal to include the ground of “due diligence”. The Registrar’s Agent did not object. The Notice of Appeal was amended accordingly.

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 his vehicle as:

the owner of the truck gave permission to a licenced driver to drive the vehicle and the licenced driver who had care and control of the vehicle did not give permission to anyone to drive the vehicle.

Further, the Applicant’s Agent submits that the owner is experiencing undue hardship due to the cost of the lease as well as the future cost of impoundment

The vehicle is owned by an Ontario corporation. In his affidavit, the owner of the corporation attests as follows:

“I hired to operate the truck … Absolutely no one else was authorized …to drive the truck.”

The Applicant’s Agent highlighted the statements contained within the affidavit, emphasizing that the Applicant at no time gave permission to any person other than the person to whom the vehicle was entrusted to drive the said vehicle.

The witness called to testify on behalf of the Applicant, explained that she was hired as a driver by the Applicant. According to the witness, the suspended driver, who was the witness’s boyfriend, took the keys to the truck without her knowledge or consent, while she was sleeping.

In cross-examination, the witness confirmed that she was hired to drive the truck after the suspended driver lost his driver’s licence. According to the witness, the suspended driver goes with her to load and unload the truck. On the night in question, the suspended driver first operated the witness’s car to get to the facility where the truck was parked for the night, then took the truck for the purpose of making a delivery.

The witness is still working for the Applicant, currently driving the truck rented by the Applicant to replace the impounded vehicle. The witness testified that she had misplaced her driver’s licence and was in the process of getting a temporary one.

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 Ability Impaired, Fail to Remain at Accident under the Criminal Code of Canada pursuant to which the driver’s license of the driver was then under suspension until Suspended for Life.

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 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

In closing, the Applicant’s Agent contends that there is evidence before the Tribunal that the suspended driver was not authorized to drive the vehicle, and he did so without the permission of the owner. According to the Applicant’s Agent, the suspended driver took advantage of the witness . As such, the Applicant had no control over what transpired, and should not be penalized.

In closing, the Registrar’s Agent pointed out that the vehicle was impounded correctly.

She noted that the witness, although claiming to have a driver’s licence, was unable to produce one at the hearing.

The Registrar’s Agent argued that it would have been impossible for the Applicant to exercise due diligence as he did not have contact with the suspended driver prior to his taking the truck. She further contends that the suspended driver was a former employee of the Applicant, and as he took the truck with the intent to make a delivery, it would appear that the suspended driver is still working for the Applicant.

According to the Registrar’s Agent, the only information before the Tribunal is that the licence of the person found to be the driver of the vehicle at the time of the impoundment was suspended for life. There is no proof that the person to whom the vehicle was entrusted had a valid driver’s licence. Since the ground of “due diligence” was added at the hearing, she submitted that the Registrar has not had the opportunity to obtain this information.

As for exceptional hardship, the Registrar’s Agent pointed out that the Applicant’s witness indicated that there is an alternative vehicle available and therefore hardship cannot be considered.

The onus is on the Applicant to establish due diligence and 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 license of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;…

The Registrar’s Agent suggested that the person hired to drive the truck, the witness before the Tribunal today, might not have a valid driver’s licence, but the Registrar did not provide any evidence of this witness’s licence being suspended. While the due diligence ground was added at the hearing, the Registrar’s Agent did not object to this nor request that the matter be adjourned to ascertain this fact. The Tribunal is prepared to accept the evidence put forward by the Applicant that the person to whom the vehicle was entrusted was, in fact, licensed.

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 has a valid licence. 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.

When considering whether “due diligence” was exercised, the issue for the Tribunal is: did the Applicant’s representative, the owner of the corporation, take reasonable steps to ensure his vehicle was driven by a licensed driver?

The evidence before the Tribunal, through the affidavit of the owner of the Applicant is that no person other than the witness had permission to drive the vehicle. In fact, the evidence is that the witness was hired as a replacement for the suspended driver after the suspended driver lost his licence. The intended driver of the vehicle was in fact licensed.

The Tribunal finds on the evidence that no one but the witness, the intended driver, was authorized to drive the vehicle and she was aware of that fact, as was, it would appear from the evidence, the suspended driver. In defiance of that direction, he took the vehicle, without anyone’s knowledge. Nonetheless, it is evident that the Applicant, having taken the necessary steps of hiring a replacement driver, exercised due diligence.–

Thus, given the evidence. the Tribunal finds that the criteria of section 50.2 (3)(c) are met.

Having found that the criteria for due diligence has been met, the Tribunal is not required to proceed with the grounds 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 confirms its order that the Registrar to release the motor vehicle.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Presiding Member

RELEASED: January 30, 2013