Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-10-02
FILE:
8328/MVIA
CASE NAME:
8328 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:
VICTORIA SIM, Agent
Heard in Toronto:
September 26, 2013
REASONS FOR DECISION
A hearing was held on September 26, 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”).
Pursuant to section 50.2 (5,) the Tribunal CONFIRMS THE IMPOUNDMENT. 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: 2003 DODG RPC (the “vehicle”)
Date of Appeal: September 5, 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 stating that he “was not driving the vehicle at the time” and that he asked the suspended driver whether he “was good to drive”.
At the hearing the Applicant described the events that led to the impoundment, and affirmed that he was “shocked” after finding out about the suspended driver’s record.
In cross-examination the Applicant confirmed that he has rented a car in order to carry on with his daily routine.
The Registrar’s Agent questioned the Applicant as to how due diligence was exercised. According to the Applicant he asked the suspended driver three times whether he was able to drive, and each time he received an affirmative answer.
The Applicant’s son spoke on behalf of his father reiterating the events and the reasons for hardship, stating that he has had to help support his father.
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 Ability Impaired 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:
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 section 50.2(3)(d).
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 asked the Tribunal for help as the suspended driver will be going to jail, and asserted that he had no reason to further question the suspended driver.
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, the criteria for exceptional hardship were not met in that the Applicant has alternate transportation.
As for exercising “due diligence” there is no evidence to suggest that the Applicant made any efforts to verify the validity of the licence of the person he allowed to drive his vehicle, other than ask whether he was able to drive. According to the Registrar’s Agent the Applicant’s question does not constitute due diligence.
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 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.
It appears that the Applicant was deceived by the disqualified driver and unaware of the suspension. In his testimony the Applicant attested that he simply asked the suspended driver if he was able to drive. The Tribunal finds the question can be misleading in that it can refer to a matter of sobriety not to whether or not the individual has a valid driver’s licence
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:
- (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, the Applicant has rented a vehicle, thus the Applicant dos have alternate modes of transportation available to him.
As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
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
____________________________________
Dr. Antoine Aouad, M.D., Presiding Member
Released: October 2, 2013