Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-12-19
FILE:
8447/MVIA
CASE NAME:
8447 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
GARY YEE, Associate Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
SONIA DE SANTIS, Agent
Heard by teleconference:
December 4, 2013
REASONS FOR DECISION
A hearing was held on December 4, 2013, at Toronto, Ontario, by teleconference to consider the Applicant’s appeal under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
As noted in the Tribunal’s Order dated December 5, 2013, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE.
BACKGROUND
A motor vehicle was impounded under 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 Acura ATL (the “vehicle”)
Date of Appeal: November 14, 2013
The suspended driver of the impounded vehicle was the owner’s spouse. They had been married five months before the impoundment, and the owner said that her spouse had not driven her vehicle until the day when it was impounded, when the owner felt sick while driving home and she asked her spouse to drive. The owner said that she had seen her spouse’s driver’s licence, and had sent a copy of that licence to her insurance company to add her spouse to her policy, but she did not know that her spouse’s driver’s licence had been suspended. The owner said that this impoundment was causing her severe emotional and financial stress.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #1), the Applicant appeals on the basis that the Applicant exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended, and also that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) (b) (c) and (d) of the Act.
Should the Tribunal order the Registrar of Motor Vehicles (the Respondent) to release the vehicle on the basis that the Applicant – as the owner of the vehicle – exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time of the vehicle being detained to be impounded was not then under suspension?
Should the Tribunal order the Respondent to release the vehicle on the basis that the impoundment will result in exceptional hardship?
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, under subsection 50.2(5) of the Act, confirm the impoundment or order the Respondent to release the vehicle. Under 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 Respondent to release the vehicle on the basis that the owner of the vehicle exercised due diligence in attempting to determine that the driver of the vehicle did not have a driver’s licence that was under suspension at the time that the vehicle was detained to be impounded?
Due diligence” in Black’s Law Dictionary (6th 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 Respondent to release the vehicle on the basis that the impoundment will result in exceptional hardship?
Section 10 of Ont. Reg. 631/98 sets out very detailed and strict criteria that the Tribunal must apply when deciding whether there is exceptional hardship. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. Only if the Applicant proves that there is no available alternative to the impounded vehicle, may the Tribunal then consider several possible reasons why the impoundment has resulted in exceptional hardship. One reason would be that the impoundment will result in a threat to the health and safety of a person normally transported in the car, or that the impoundment will create a threat to the health and safety or the environment or property of the community.
Another reason would be that someone normally transported by the impounded vehicle (but not the suspended driver) will suffer an “immediate, significant and lasting” loss. This loss could be a financial or economic loss, the loss of employment, education or training, or the loss of an opportunity for employment, education or training. If there is just inconvenience caused by the impoundment, that cannot be considered by the Tribunal.
Also under this legislative definition of “exceptional hardship,” the Tribunal cannot consider the impact of any loss suffered by the person who was driving with a suspended licence when the vehicle was impounded. Furthermore, the exceptional hardship cannot be a loss that is caused by the suspended driver having suffered a financial, employment or education loss.
The burden of proof is on the Applicant to satisfy the Tribunal that at least one of the grounds of appeal has been proven on a balance of probabilities.
FACTS AND ANALYSIS
The Respondent filed the following documents, which the Tribunal admitted into the record:
Certified copy of the Notice to Registrar setting out the information that supported the 45-day impoundment;
Certified copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on February 20, 2013 of Dangerous Driving and Fail to Stop for Police Officer under the Criminal Code of Canada, which resulted in the driver’s licence of the driver being suspended until May 1, 2014.
Certified copy of the Ministry of Transportation vehicle record indicating that the impounded motor vehicle was registered in the name of the Applicant as owner, as of the date of the impoundment; and
Certified copy of the Notice of Impoundment.
The Applicant testified at the hearing and provided evidence that was generally consistent with the reasons in her Notice of Appeal. This focused more on the hardship caused by the impoundment than the due diligence defence. The Tribunal finds that the exceptional hardship ground has not been proven because of the legislative requirement that the Applicant must prove that she had no alternative to this impounded vehicle. However, the Applicant has shown that she exercised the required due diligence in her situation.
Due Diligence
The Applicant was a credible witness. She testified in a forthright and sincere manner, and she had plausible explanations and answers when questioned by the Respondent’s representative and the Tribunal. The Applicant did not know that her spouse’s driver’s licence was suspended until the police impounded her vehicle on November 5, 2013. She married her spouse on June 1, 2013. She had seen his driver’s licence in his wallet, noticed that it indicated G2 class and that the address had not been changed yet. She asked him to get the address changed. Later, in September, she called her insurance agent to add her spouse to her car insurance policy, and she was asked to send in a copy of his driver’s licence. She did this, and even phoned them to verify that they had received it, at which point she was told that the policy change could take a few weeks. She had not heard back from them by the time her car, while being driven by her husband, was impounded.
The Applicant testified that her spouse never drove her car before the day it was impounded. He did not appear comfortable with driving her car. On November 5, 2013, they were returning from Toronto and she was not feeling well – she had a migraine and nausea. Although she did start driving home, she pulled over soon after and asked her husband to drive. He seemed hesitant, but he took over the driving. He was later pulled over for speeding. The Applicant testified that she would never have agreed to let him drive her car if she had known that his licence was suspended. She is “paranoid” about other people driving her car, and she was monitoring his driving for speeding, but he was only momentarily going fast to stay with the flow of traffic. She had let her younger brother drive her car before, and she said that she had seen his driver’s licence.
When the Applicant’s spouse was stopped by the police, he was very nervous and was “freaking out.” She didn’t know why he was overreacting. He actually didn’t have his driver’s licence with him, and the police officer let him drive home to get his licence, with the officer following behind. Only after the officer checked into her spouse’s driving record did the Applicant find out about the convictions and licence suspension. She was very surprised; it was a big shock to her.
The Respondent’s representative cross-examination confirmed that the Applicant did not ask to see her spouse’s driver’s licence on the day that she asked him to drive her car, nor did the Applicant at any time check with the Ministry of Transportation to see if her spouse’s driver’s licence was valid or was under suspension. The Applicant said she didn’t know at that time that she could do that, and in any event, she didn’t even think that his licence might be suspended. The Applicant said that she is a person who follows the rules. She acknowledged that she now knows that she can do more than just look at a person’s driver’s licence.
The Respondent submitted that the requirement of due diligence meant that the Applicant should have asked to see her spouse’s driver’s licence that day he drove the vehicle, and the Applicant should have phoned the Ministry to verify the status of that licence. The Respondent’s Representative submitted that this was especially the case because there had been no pattern of regular use of the vehicle by the spouse, and this was the first time that he was driving it.
The Tribunal finds that the Applicant exercised the required due diligence in this situation. Section 50.2(3) of the Act refers to “due diligence in attempting to determine that the driver’s licence . . . was not then under suspension.” The Respondent took the position that this requires a phone call to the Ministry to check on the status of a driver’s licence – merely seeing that someone has their driver’s licence is not enough. The Tribunal agrees that some situations would require this kind of action by the owner of the car, but it would appear unreasonable and impractical for that action to be required in every single situation when an owner permits someone else to drive their car.
This Regulation is detailed in defining the meaning of “exceptional hardship,” but it does not define “due diligence.” Therefore, it is the responsibility of the Tribunal and the courts to define this, and provide guidance as to what vehicle owners ought to do. The use of the term “due diligence” supports the view that there is no absolute standard, but that the required actions depend upon the particular circumstances, and an assessment of what a reasonable and prudent person would do under those circumstances. In this case, after the Applicant and her spouse married and started living together, she took action to add him to her car insurance policy. She had seen his driver’s licence in his wallet occasionally. In hindsight, perhaps she ought to have been suspicious and maybe even asked him some probing questions when he never wanted to drive her car. However, in this fairly common situation of a newly-married couple sharing one vehicle, it would not be reasonable to expect or require one spouse to inspect, challenge and investigate the driver’s licence of the other spouse before letting that spouse drive the vehicle. Of course, there may be other circumstances where due diligence would require further investigation. For example, the owner may actually know about their spouse’s previous driving problems or previous convictions or charges, or the owner may know that their spouse had lied before about their licence status or driving record. Each case will need to be decided on its own unique facts.
Under the facts of this case, the Applicant was entitled to rely upon having earlier seen her spouse’s driver’s licence with no indicators of a possible suspension, and therefore had sufficient grounds for letting him drive on November 5, 2013. The Tribunal also finds support in the Applicant’s credible testimony about being careful with her car, following rules, trying to add her spouse to her car insurance and being shocked when she found out about his suspension.
Exceptional Hardship
The Tribunal does not need to consider this ground of appeal since it is granting the appeal on the basis of due diligence. For completeness, the Tribunal notes that this ground of appeal would have failed because the Applicant did not pass the first hurdle – that of proving that no alternative to the impounded vehicle was available. The detailed provisions in section 10 of Ont. Reg. 631/98 are very strict and they narrowly limit what the Tribunal may consider as being exceptional hardship.
The Applicant testified about the severe emotional and financial stress that this impoundment has caused her. This happened just after she had resigned from her job as a pharmacist in a drug store, and then her spouse lost his job just a few days after the impoundment. The Applicant had anxiety and headaches from this situation, and their spousal relationship was also suffering. The Applicant was having trouble getting even part-time shift work because she could not get to some of the more remote locations.
But the evidence supported the Respondent’s submission that the Applicant had not shown that she had no alternative to her impounded vehicle. This is a legislated precondition that must be met before the Tribunal is permitted to consider whether the exceptional hardship has caused a threat to the Applicant’s health or some “immediate, significant and lasting” loss of a financial, employment or education nature. The Applicant had public transit available in her city, she sometimes could borrow her father-in-law’s car, and she sometimes could take a taxi. These options are not as convenient or cost-effective as using her own car, but that is not enough to trigger the exceptional hardship grounds of appeal in this legislation.
DECISION
After considering the evidence and the law, under the authority of section 50.2(5) of the Act, the Tribunal ordered the Respondent to release the vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D, Presiding Member Gary Yee, Associate Chair
RELEASED: December 19, 2013