Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-11-06
FILE:
8393/MVIA
CASE NAME:
8393 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:
Sonia De Santis, Agent
Heard by teleconference:
November 5, 2013
REASONS FOR DECISION
A hearing was held on November 5, 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 “Act”).
Pursuant to section 50.2(5) of the Act, the Tribunal orders 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: 2004 Dodge Dak
Date of Appeal: October 17, 2013
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), 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 she allowed a friend to drive her vehicle on the day it was impounded because she believed the friend had a valid driver’s licence.
She stated that she knew that the friend’s driver’s licence had been suspended for medical reasons but he advised her that it had been reinstated. She asked to see his driver’s licence. She stated that the friend showed her his licence before she allowed him to drive. On cross-examination, she stated that she had not checked the expiry date on that licence, indicating that she did not think to do this when she viewed it.
The Applicant lives with her partner in a country setting. Both the Applicant and her partner are disabled, do not work and receive disability pensions. The Applicant’s partner sustained serious injuries as a result of an accident, suffering a broken neck which failed to heal successfully and bleeding in his brain. As a result, he now has both physical and mental disabilities and is unable to drive. He is under the care of a number of medical specialists in the areas of neurology, orthopaedics and psychology, and therapists including a physiotherapist and dietician. The professionals whom the Applicant’s partner sees are located in a number of municipalities, including larger centres some distance from the Applicant’s home. The Applicant is her partner’s sole caregiver and she uses the impounded vehicle in order to drive to the various appointments. She estimated that on average, her partner has four appointments per week. Since the impoundment, the Applicant has cancelled the majority of the appointments, estimating that approximately twelve of sixteen scheduled appointments were missed.
The Applicant indicated that her parents do have a vehicle but have been unable to lend it to her because the Applicant’s mother assists another family member who is currently ill with a brain tumour and uses it to drive to that family member’s home in order to assist with child care. The Applicant’s parents have loaned the Applicant funds for taxi fare in order that the Applicant and her partner could attend scheduled appointments with one therapist who is located in a small municipality near their home.
The Applicant does live in an area with 911 emergency services but has not used it since the impoundment of her vehicle. She testified that as a result of missing some appointments, her partner was unable to walk and that while she considered calling 911 for assistance, her partner objected, fearing he would be kept in hospital.
The Applicant further testified that while some of the hospitals which her husband attends do have driving services for some patients, these services are unavailable for neurology patients. She also stated that driving assistance is not available through the disability pension providers.
Ms. De Santis asked the Applicant about the records of the Ministry of Transportation which indicate that the Applicant has two other vehicles. The Applicant indicated that she has not had these vehicles for many years. Similarly, the Applicant’s partner no longer has any of the vehicles the Ministry records show registered to him as owner.
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 Fail to Remain at Accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 30, 2014.
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.
O. Reg. 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, 3^rd^ 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, 3^rd^ 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
With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle and, if there is no alternative available, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle.
Section 10(4) of O. Reg. 631/98 requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, the Applicant and her partner, who is under the care of a number of medical professionals, live outside of a major municipality and require the use of a vehicle in order to attend various medical appointments. In her Notice of Appeal (Exhibit #2) filed with the Tribunal, the Applicant provided a list of fourteen medical professionals who see the Applicant’s partner and provided a letter from the partner’s general practitioner confirming his disability. Since the impoundment, the Applicant’s partner has only attended appointments in the small municipality near the Applicant’s home which he was able to do because the Applicant’s parents were able to provide money for a taxi. He has missed approximately twelve of an estimated total of sixteen scheduled medical appointments since the impoundment.
The Applicant and her partner no longer own any vehicles other than the impounded vehicle. She testified that she and her partner both receive disability pensions as their sole source of income and there are no funds available to replace the impounded vehicle. Her parents’ vehicle cannot be borrowed because it is regularly used by her mother who provides care for another family member who is ill. The Applicant testified that funds are not available to use taxis to reach major municipalities as the cost would be prohibitive. She also testified that driving assistance is not available from either the major hospitals attended by her partner or from his disability pension provider. The Tribunal therefore finds that there is no reasonable alternative available to the impounded vehicle.
In addition to missing the majority of scheduled appointments since the impoundment, the Applicant’s partner has experienced one incident where he was unable to walk. In this case the Applicant, although she considered calling 911, did not do so because the partner feared he would be kept in hospital. While the fact the Applicant chose not to call 911 is indicative of the fact that the situation was not an emergency, the fact that the Applicant’s partner is under very active medical care from a broad range of medical and therapy specialists is sufficient to convince the Tribunal that, on a balance of probabilities, the loss of the Applicant’s vehicle does present a threat to his health and safety.
The Tribunal finds that the impoundment of the Applicant’s vehicle will result in exceptional hardship. Given this finding, there is no need for the Tribunal to address the issue of due diligence.
Having found that the impoundment will result in exceptional hardship, in accordance with section 50.2 (3)(d) of the Act, the Tribunal therefore orders that the Applicant’s vehicle be released.
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, Member
Released: November 6, 2013