Licence Tribunal
Appeal d'appel en
Tribunal mati?re de permis
DATE:
2014-05-30
FILE:
8813/MVI
CASE NAME:
8813 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Self-Represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: May 28, 2014
REASONS FOR DECISION
A hearing was held on May 28, 2014, to consider the AppellantÕs appeal pursuant to
section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the ÒHTAÓ or the ÒActÓ).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT imposed by the Registrar of Motor Vehicles (the ÒRegistrarÓ) 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 Appellant
Motor Vehicle: 2004 Ford, COF (the vehicleÓ)
Date of Appeal: April 22, 2014
ISSUES
Based on the Notice of Appeal and the AppellantÕs testimony at the hearing, the issues in this appeal are whether the owner exercised due diligence as provided in section 50.2(3)(c) of the Act, and/or whether the loss of the vehicle will result in exceptional hardship as provided in section 50.2(3)(d) of the Act.
EVIDENCE FOR THE APPELLANT
A summary of the evidence of the Appellant is as follows.
The Appellant confirmed the details contained in her Notice of Appeal ("NOA"). She was helping a friend move some belongings and because she had a few drinks, she accepted an offer from her friend's daughter's boyfriend (ÒODÓ) to drive a load of items to her friend's new house. The Appellant said she asked OD, who was also the driver of the vehicle when it was impounded, if he was "legal to drive", to which he answered "yes".
The Appellant said that her main residence has been in a small northern community, but it has been difficult for her to adjust since her husband died about two years ago. She was in a different town at the time of the incident because her other family members lived there and as a widow, she had wanted to be closer than her own community, which is a 3½ hour drive away. She said that because this is a small community, people trust each other and she accepted OD's reply about being legal to drive without ever considering to ask for more proof.
She only learned of the fact that OD was a suspended driver when he later called to inform her that he had been stopped and the vehicle was impounded.
In cross-examination, the Tribunal heard the Appellant has to some degree been able to get some transportation help from her sister and daughter but feels there is a limit to how much she could ask of them. She has part-time employment and works shifts that change and while she has been able to manage for most, the 5am to 10am shift has been difficult for her. The workplace is a 15-20 minute walk, which is ok if the weather is good.
She has two grandchildren, ages 5 and 7, who she babysits and she also makes sure they get to and from their school. Her daughter and son-in-law also work shifts, but everyone has managed to make sure the children have not missed any school. The Appellant said she has no health issues other than the stress and anxiety caused by the loss of her vehicle and the impending cost to retrieve it from the impound facility. She confirmed there is a medical clinic in her immediate vicinity so medical appointments have not been an issue.
When the Appellant was asked about another vehicle registered to her, with a valid sticker, she said it had numerous mechanical and rust issues to the extent that it was undriveable and had been left in the "back 40" on her farm property. It had been stripped for parts and would be too expensive to repair. She said there is little taxi service in the community and even if it were easily available, she would not be able to afford a taxi.
EVIDENCE FOR THE REGISTRAR
The documents tendered by the Registrar and admitted into the record on consent 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 Appellant 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;
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 his driverÕs license suspended on June 5, 2013, due to a conviction on a charge of dangerous driving under the Criminal Code of Canada pursuant to which the license of the driver was suspended until June 5, 2014.
The Registrar called no other evidence.
In closing summary, the Appellant reviewed the evidence she had already given.
The Registrar's Agent asked the Tribunal to confirm the impoundment, submitting that the appeal must fail because the Appellant had alternative transportation help from her other family members and that the hardship grounds described in the Act had not been met. He stated that as the Appellant had also acknowledged she simply trusted the suspended driver's statement that he was "legal to drive" the appeal on the ground of due diligence was insufficient and should also fail.
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 ownerÕs 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 driverÕs 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 driverÕs 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 Appellant here appeals on the basis of sections 50.2(3)(c) and (d).
Regarding the issue that the owner of the motor vehicle exercised due diligence in attempting to determine that the driverÕs licence of the driver of the motor vehicle at the time the vehicle was impounded was not then under suspension, the Shorter Oxford Dictionary, 3rd ed. provides the definition of Òdue diligenceÓ 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, Òdue diligenceÓ in BlackÕs 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.
On the exceptional hardship issue, the Shorter Oxford English Dictionary, 3rd ed. defines Òexceptional hardshipÓ 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. The section also 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
The Appellant has, on a balance of probabilities, failed to prove her case for either exceptional hardship or due diligence.
Regarding exceptional hardship, an appellant must first establish that no alternative exists for the impounded vehicle. The Appellant has failed to do this as she acknowledged she has been able to obtain rides with other family members.
The Appellant confirmed there are no medical issues and that no one reliant upon her vehicle was unable to meet their obligations. The only references were to her employment and her grandchildren getting to school and in both examples, there was no evidence that exceptional hardships had been experienced. Therefore the appeal on the ground of exceptional hardship fails.
On the ground of due diligence, the Appellant confirmed that she only asked OD whether he was legal to drive and he replied "yes", that he was. The Appellant acknowledged that despite only having just met the individual she trusted this reply and thought no further of it.
In the absence of any other effort to confirm whether or not OD had a valid driver's licence (e.g. at a minimum just asking to see the driver's licence document), the Tribunal finds the appeal on the ground of due diligence must fail.
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 AppellantÕs motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: May 30, 2014