Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-06-09
FILE:
8839/MVIA
CASE NAME:
8839 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
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard in Toronto:
June 6, 2014
REASONS FOR DECISION
A hearing was held on June 6, 2014, at Toronto, Ontario, by teleconference, to consider the Appellant’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) the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
PRELIMINARY ISSUES
The Appellant filed his appeal on May 20, 2014, 16 days after the vehicle was impounded and one day after the 15 day period in which an appeal can be filed. The Appellant then filed a Notice of Motion in which he requested an extension of the time in which to file the appeal. At the outset of the hearing, the Tribunal noted that because the 15 day period ended on May 19, 2014, a statutory holiday, the prescribed filing time is extended a further day. The Appellant therefore filed the appeal within the requisite time frame and there was no need to hear the motion.
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: 2003 Jeep GOK (the “vehicle”)
Date of Appeal: May 20, 2014
ISSUES
As set out in the Appellant’s Notice of Appeal (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, 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 Appellant
A summary of the Appellant’s evidence follows.
The Appellant’s vehicle was impounded after it was involved in a minor collision when he and a friend were travelling home after visiting Toronto. The Appellant testified that he was not feeling well and therefore he had his friend, the suspended driver, drive. He asked the friend if he had his licence and was told he did. He had seen the friend drive before and had seen him use his licence for identification purposes at bars although he had not actually seen the document. Because the Appellant lives near the Canada/U.S. border, which he and his family cross frequently, he is in the habit of asking his family members if they have their licenses, wallets or identification before setting out. He testified he did the same check with his friend but he did not see the licence. When the police stopped the vehicle, the friend was unable to produce a driver’s licence for them.
Ms De Santis asked the Appellant if he and his friend had been drinking before driving home on the day of the impoundment. The Appellant said he had not. Ms De Santis drew his attention to the suspended driver’s record (Exhibit 3) which indicated that on the day of the impoundment he received an administrative licence suspension for a blood alcohol concentration above .05.
The Appellant lives with his mother and two brothers in a small municipality located just outside of a small city. There is no public transit in the small municipality. Since the impoundment the Appellant has “not been doing anything” and he is “like the maid”. His mother and one of his brothers, both of whom have vehicles, work full time. He and his other brother stay at home and watch television.
The Appellant has just completed his post secondary education. He was enrolled in a co-op program and his work terms were with a major employer in the small city. The Appellant testified that this employer has verbally offered him a permanent full time position in his field but he is unable to accept it without a vehicle because it is located an approximate 40 minute drive from his home. It involves shift work and neither his mother nor his brother can assist him because their hours of work do not correspond to the shift start and finish times. The Appellant confirmed that he does not have a written offer of employment. The employer has told him to contact them once he is ready to work. He did tell the person in charge of hiring, who is the mother of a friend, about his situation. He last spoke to the employer approximately one month ago but stated that as far as he knows, the job will be there when the impoundment ends. If it is not, he will look for work in western Canada but this would be “a worst case scenario”.
The Appellant’s father works in western Canada, returning home regularly. The Appellant believes that he also would be able to work in his field in western Canada, working at the same firm that employs his father. He indicated his father had recently been home for a week. Asked he if could have driven back with his father to pursue this opportunity, the Appellant said he could not leave without his vehicle. He also testified that without the vehicle, he can no longer assist his grandparents who live an estimated 60 to 90 minute drive away in the United States.
The Appellant is in good health, has missed no medical appointments and lives in an area served by 911 emergency services.
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 Appellant 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 outlined in point 4 below;
Copy of the notice forwarded to the Registrar regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 9, 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 Appellant 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, 3rd 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, 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.
The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
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 first issue to be considered is whether the Appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was impounded was not then under suspension. Section 50.2(3)(c) of the Act requires the owner of the vehicle to exercise due diligence. The onus of proof is on the Appellant to establish that due diligence was performed.
Due diligence requires that an owner exercise care and attention. In this case, the Appellant asked the suspended driver if he had his licence. He testified that he did this as a matter of course because he always checks that family members have their identification with them since they frequently cross the Canada/U.S. border. The Appellant did not ask to see the friend’s licence.
The Tribunal finds that the Appellant did not make reasonable efforts to confirm his friend’s driver’s licence was valid by, at a minimum, asking to see it, and therefore finds that he did not exercise due diligence in accordance with section 50.2(3)(c) of the Act.
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 Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle.
The Appellant is a recent graduate and does not yet work full time. He testified that he lives in an area without public transit and therefore he is unable to accept a job offer without a vehicle. While he testified that he has an offer of employment with his former co-op program employer, this offer has not been formalized. The Appellant believes that the job will be available once the vehicle is released from impoundment, having been told to contact the employer when he is ready to work. While the Appellant indicated that he is concerned about his future employment, he also testified that the person in charge of hiring is the mother of a friend and she is aware of his situation. He has not contacted the employer for almost one month. Further, he testified that he would also have job opportunities in his field working for the company in western Canada that employs his father although he stated he cannot pursue these without his vehicle.
Section 10(4) of the Regulation 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 adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
The Appellant did not provide any evidence to indicate that he had explored “every reasonable option”. The Appellant lives in the family home and both his mother and one of his brothers have vehicles. When the Appellant was asked how he was getting groceries, he testified that he was living off “Kraft dinner”. It was only after the Tribunal directly asked him if he lived alone, that he revealed he lived in a house with three other individuals, two of whom own operating vehicles. While he testified that neither his mother nor his brother could assist him because their hours of work would not correspond to the hours he would have at his former co-op employer, there was no evidence presented to indicate whether other options, such as vehicle rental, for example, had been considered. Further, while the Appellant testified that he needed his vehicle to assist his grandparents, he provided no evidence to indicate that they had done without assistance since the impoundment.
There is no evidence that the Appellant has actually sustained any significant or lasting loss. He has no formal job offer. In his Notice of Appeal, the Appellant clearly implied that he would lose a job opportunity without the use of his vehicle. The tone of the Appellant’s testimony indicated that he clearly resents the fact that he does not have the use of a vehicle. He stated he did nothing all day, was “like the maid”, and, at the end of the hearing, stated that he might end up “doing nothing for the rest of my life” in spite of having testifying that his former co-op job would be available as a full time position when he was “ready to work” and that if it were not, another opportunity in his field would be available in another part of the country.
The Tribunal therefore concludes that not only has the Appellant not investigated all other options to the impounded vehicle but also that doing without a vehicle, as the Appellant has already done for approximately one month, appears to be a valid option in the absence of a firm job offer.
The evidence indicates that the Appellant has an alternative available to the use of the impounded vehicle and therefore he has not established exceptional hardship as set out in subsection 50.2(3)(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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
_______________________
Mary Ann Spencer, Member
Released: June 9, 2014