8628 v. Registrar of Motor Vehicles, 2014 CanLII 14993

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2014-03-13

FILE:

8628/MVIA

CASE NAME:

8628 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:

Nives Montano, Member

APPEARANCES:

For the Applicant:

Peter Dorken, Agent

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

March 7, 2014

REASONS FOR DECISION

A hearing was held on March 7, 2014, 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 “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: 2005 Chrysler 300 (the “vehicle”)

Date of Appeal: February 18, 2014

On March 6, 2014, the day before this hearing, Mr. Kapur faxed to the Tribunal an addendum to the suspended driver’s record together with a one-page information sheet which is available on the internet. Mr. Kapur requested the foregoing to be added to the Registrar’s submissions. This three-page document was sent by overnight courier to Peter Dorken. Mr. Dorken confirmed that as of the start of this hearing, he had not received the couriered envelope. The foregoing documents were explained in detail to Mr. Dorken and he was satisfied that the hearing could continue.

ISSUES

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 Agent’s evidence follows.

The Applicant’s brother, who resides in Ontario, will be representing the Applicant as his Agent for this appeal. The Agent was affirmed before giving testimony. The Agent testified that he can provide little to no information regarding the Applicant’s vehicle’s impoundment. The Agent was instructed by the Applicant to appear on his behalf to request the release of the impounded vehicle.

The Applicant is a resident in the Province of Alberta. To the best of the Agent’s knowledge, shortly after Christmas, the Applicant and his wife have been vacationing in West Texas and are currently in Arizona staying with friends. The Applicant and his wife have extended their stay in Arizona until this Tribunal makes its decision on the release of the impounded vehicle.

The suspended driver at the time the vehicle was impounded was the Applicant’s son. The suspended driver lives in Ontario but according to the Agent, the suspended driver decided to go to Alberta to look for work. The suspended driver was criminally convicted and deemed a suspended driver on May 10, 2013 stemming from an October 2010 offence date. On May 21, 2013, the suspended driver was issued an Alberta driver’s licence. When the Applicant’s vehicle was recently impounded, according to the Notice to Registrar, the suspended driver produced the Alberta driver’s licence. According to the Agent, the suspended driver was returning to Ontario for the Family Day long weekend to visit his girlfriend and kids.

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 :

(i) Blood Alcohol Content in Excess of .08;

(ii) Fail to Stop for Police; and

(iii) Dangerous Driving

under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 23, 2015.

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, 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

On the face of this appeal, the ground of appeal appears to be due diligence. The Agent also raised the fact that the Applicant is a senior on a limited budget. Therefore, this appeal will be based on due diligence as well as exceptional hardship.

The Agent graciously agreed to represent the Applicant in this appeal but was put in a precarious position. The Agent provided vague details and had very limited and/or no knowledge or information to assist in the Applicant’s defence. Unfortunately, the Tribunal has been left with more questions than answers.

Due Diligence

The first issue to be considered in this appeal is whether the Applicant exercised due diligence, in attempting to determine that the driver at the time the vehicle was impounded, in respect of which the order was made was not then under suspension. Subsection 50.2(3)(c) of the Act is quite specific in that the owner of the vehicle must exercise due diligence and the onus of proof is on the Applicant to establish that due diligence was performed, as required under this section of the Act.

According to the details in the Owner’s Notice of Appeal, the Applicant wrote “I saw my sons drivers license 1^st^ hand before I let him borrow the car.” Since the Applicant was not in the country when the suspended driver took care and control of the impounded vehicle, the Tribunal queries when did the Applicant actually see the suspended driver’s driver’s licence and was it issued in Ontario or Alberta?

According to the Notice to Registrar, the suspended driver’s address on his Alberta driver’s licence is the same as the Applicant’s, which raises a few more questions which, unfortunately, have gone unanswered:

1. Did the suspended driver move to Alberta? If so, when did he commence his residence there?
2. Does the suspended driver live with the Applicant?;
3. How often has the suspended driver driven the Applicant’s vehicle while in Alberta?;
4. Was the Applicant aware of the circumstances surrounding the May 2010 incident wherein the suspended driver’s vehicle was written off and the suspended driver was criminally convicted causing his driver’s licence to be suspended until January 23, 2015?

The Tribunal therefore has little to no evidence to determine which provincial licence was viewed by the Applicant and to what extent and/or what measures the Applicant took to in exercising due diligence as required by subsection 50.2(3)(c) of the Act.

Exceptional Hardship

The second issue to be considered in this appeal is whether the impounded vehicle resulted in “exceptional hardship” under section 50.2(3)(d).

For this appeal to be successful, the first and foremost criterion the Applicant must demonstrate is that there is no alternative means of transportation available to the impounded vehicle.

Mr. Kapur was diligent in detailing relevant and useful information regarding services available to the Applicant in his community in Alberta; i.e., public transit; 911 accessibility; pharmaceutical/ grocery delivery and taxi services all of which are close to their home and fully-accessible by the Applicant and his wife should their return to Alberta before the impounded vehicle’s release.

Since the Applicant and his wife have been vacationing in the U.S. for almost three months, the loss of the impounded vehicle does not pose a threat to their health and safety. The Tribunal queries why the Applicant and his wife delayed their return home; how have they managed to support themselves these past few months. The Agent advised the Tribunal that approximately “$3,500 is not in his budget” referring to the Applicant’s costs associated with the vehicle’s impoundment. The financial impact once the vehicle is released will be immediate, but not significant and lasting.

The Applicant has the right to seek compensation from the suspended driver, as stated in subsection 55.1(21) of the Act:

The owner of a motor vehicle that is subject to an order to impound under this section may bring an action against the driver of the motor vehicle at the time the order was made to recover any costs or other losses incurred by the owner in connection with the order.

The Tribunal finds that the Applicant has not exercised due diligence nor established exceptional hardship as set out in sections 50.2(3)(c) and (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

Nives Montano, Presiding Member

RELEASED: March 13, 2014