Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-06-11
FILE:
8829/MVIA
CASE NAME:
8829 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:
Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard in Toronto:
June 3, 2014
REASONS FOR DECISION
A hearing was held on June 3, 2014, in Toronto to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 as amended (the “Act”). The Tribunal has reviewed the evidence and submissions and makes the following Order, and these are the reasons:
Pursuant to section 50.2 (5) of the Act, THE TRIBUNAL ORDERED 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 Appellant
Motor Vehicle: 2001 TOYT HIG (the “vehicle”)
Date of Appeal: May 14, 2014
The Respondent’s Agent requested that the witness be excluded. The request was granted.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #1), the owner appeals on the basis that she, as the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended as provided in sections 50.2(3)(c) 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?
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows:
The Appellant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Appellant states that she was aware of her husband’s original suspension, but felt confident that the matter had been resolved when she witnessed him receiving a new licence on December 18, 2013. The licence given to her husband at that time expired in three months. The Appellant further contends that the letter from the Ministry informing of the suspension which is dated May 1, 2014, was not received until May 6th, 2014; the day after the suspended driver was stopped and the vehicle impounded. The Appellant asserts that the vehicle is needed for work, and that the loss of the vehicle is causing family upheaval and exceptional hardship.
The Appellant attached to the Notice of Appeal: a copy of an Application for a driver’s licence and a temporary licence issued to “GST– Effective 2013/12/18 – Date of Expiry 2014/03/18
During the hearing, the Appellant testified that the vehicle was wrongly impounded as the driver had a valid driver’s licence. The Appellant attested that the letter from the Ministry informing of the suspension was received a day after the incident where the vehicle was impounded.
According to the Appellant, the loss of the vehicle is causing difficulties with job and family. The Appellant admitted that regardless of the assertion made in the Notice of Appeal that she was with her husband when he obtained the replacement licence, she had in fact only been shown the paperwork and the licence issued.
The Appellant was adamant that the she would not have allowed her husband to drive had she been aware of the suspension, asserting that she should not be made to suffer by the Ministry’s mistake.
In cross-examination, the Appellant confirmed that she is a recruiter and needs to be on time for her job. Since the impoundment, she has been using taxis and public transportation.
According to the Appellant, her father-in- law is in ill health and she would normally take him to medical appointments. Since the impoundment there have not been any medical incidents.
The Appellant testified that her life has been adversely impacted since the impoundment, as her routine has been disrupted due to the extra time that it takes to get about, even for such simple tasks as grocery shopping. As far as religious services are concerned, the Appellant finds it difficult to burden her siblings, but has had to ask for rides to attend Sangha on Sundays.
The Appellant affirmed that she feels bad about not being able to see her family as often as she is accustomed to.
Regarding the fact that her husband had a second licence issued under a different name from the name on the original licence, the Appellant attested that she was aware her husband had legally changed his name to include his family name which had been omitted from his original documents. According to the Appellant, she was not surprised to see the new licence under his new name as she assumed that the Ministry would do their due diligence in establishing her husband’s identity.
The Appellant testified that she is unaware of where her husband lived prior to the marriage in August of 2013.
The alleged suspended driver was called as a witness by the Appellant, who declined to ask questions of the witness.
In cross-examination, the witness confirmed that his mailing address was always his parent’s address even though he lived in at another address. The witness claims that even though his licence showed his actual living address, he informed the MTO that mail was to be directed to his parent’s house. In fact, according to the Appellant, his renewals and emission test requirements were sent to his parent’s house. The witness claims that he never received a letter of suspension addressed to where he lived, and insists that the MTO should not have sent any mail to that address, as his mailing address always has been his parent’s house, which is now his current address.
The witness testified that when he went to Service Ontario to obtain an Ontario card showing his name change, he was told that he could get a new licence, which is what he did. The witness stated that he checked off the box indicating that he did not have a previous driver’s licence as he was told to start over.
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 MTO 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 of Motor Vehicles regarding the impoundment;
Copy of the MTO records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 4, 2015.
The Registrar did not call any witnesses.
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.
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 Appellant here appeals on the basis of sections 50.2(3) (c).
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.
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
In closing, the Appellant asked for the return of her vehicle, reiterating her statement that she should not suffer because of the Ministry’s mistake.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
The Registrar’s Agent pointed out that the Appellant was in the car at the time of impoundment, thus precluding an argument that the vehicle was stolen.
With respect to due diligence, the Registrar’s Agent maintains that the Appellant did not contact the Ministry to ensure the validity of the suspended driver’s licence. Further, there is conflicting evidence in that the Appellant originally stated she was present at the time the suspended driver was given his new licence, then admitted that she had only seen the paperwork.
With respect to the validity of the driver’s licence at the time of impoundment, the Registrar’s Agent referred to the letter dated May 1, 2014, which explains that the merging of the two records, as the Appellant applied for a new licence under a different name from the name on his original driver’s licence. The Registrar’s Agent maintains that the suspended driver applying for a new licence under a different name was deliberate, as the question asking if he had ever held a driver’s licence was ticked “NO”.
According to the Registrar’s Agent, the Appellant, having been aware of the suspended driver’s history, should have taken pro-active action in satisfying herself that the licence presumably shown to her was valid, by calling the Ministry.
As for exceptional hardship the Appellant has faced inconvenience but does have alternatives to the impounded vehicle.
The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3) of the Act.
The Appellant allowed the suspended driver to drive her vehicle; therefore the Tribunal finds that the vehicle was not “stolen”. The criteria of section 50.2(3)(a) of the Act has not been met, and the appeal fails on that ground.
The Tribunal has no jurisdiction to deal with issues or inferences of possible fraud committed by an individual in obtaining a driver’s licence. The fact of the matter is that the Ministry of Transportation issued a driver licence, which was accepted by the Appellant as valid, a copy of which is attached to the Notice of Appeal. Given that she was aware of her husband’s name change, the Tribunal finds it plausible that the Appellant would not question the name on the licence. The Registrar’s Agent’s major contention is that the Appellant should have called the Ministry’s Office to verify the validity of the licence. As pointed out in several previous decisions, the Respondent’s position that individuals should confirm driver’s licence validity with the Ministry of Transportation is only policy, as there is no legal obligation to do so.
The Tribunal found the Appellant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness thus, accepts her testimony, that a replacement was received after the expiry date of March 18, 2014. By actually having seen her husband’s driver’s licence, the Tribunal finds that the Appellant exercised due diligence. Thus the Tribunal finds that the criteria for due diligence under sections 50.2(3)(c) was met.
Having found that the criteria for due diligence has been met, the Tribunal is not required to proceed with the grounds of exceptional hardship.
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
Dr. Antoine A. Aouad, Presiding Member
Released: June 11, 2014