Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-06-13
FILE:
8819/MVIA
CASE NAME:
8819 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:
Sanjay Kapur, Agent
Heard in Toronto:
May 29, 2014
REASONS FOR DECISION
A hearing was held on May 29, 2014, at Toronto, Ontario, in person 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.
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 Dodge Caravan (the “vehicle”)
Date of Appeal: May 9, 2014
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), 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 is a single mother with three children who works full time. The evening before her vehicle was impounded she injured her foot. On the day of the impoundment, when she needed to travel to another business location, a colleague, the suspended driver in this case, offered to drive her. The Appellant testified that she asked him a number of times if he was sure he wanted to drive before allowing him to do so. Having worked with him for a number of years, she trusted him. She stated that she had seen him drive himself, had witnessed him renting vehicles and, as recently as March of this year, had seen him offer his driver’s licence as identification. Therefore, she did not ask to see his driver’s licence before allowing him to drive her vehicle. The Appellant acknowledged that she had made a serious mistake and apologized for doing so.
The Appellant normally uses her vehicle to drive her children to school and to drive to her workplace. Her normal routine would be to drop her children at school for its 8:30 a.m. start time and then drive to her office, a trip which takes approximately 15 to 20 minutes. In the afternoons, a babysitter would pick the children up from school at 3:00 p.m. and stay with them until the Appellant returned home from work at approximately 6:00 to 6:30 p.m. She would then use the vehicle to drive her children to various activities which are scheduled two evenings and one weekend day per week.
Since the impoundment, the Appellant has been using the bus to reach her work. She testified that this has added approximately an hour to her morning commute. While she lives and works in a large municipality which is served by public transit, the commute requires her to transfer from one bus to another. The trip by public transit takes an estimated 60 to 90 minutes. On occasion, the Appellant has had assistance from co-workers or friends who have driven her home. For the children’s activities, she has tried to make arrangements for other children’s parents to pick her children up, although she noted this was both stressful and difficult since separate arrangements had to be made for each occasion. While she noted that she does normally carpool, she stated that it was more difficult because arrangements must be made for each week and one of her children has missed an activity once because of lack of transportation. While it would be theoretically possible to use public transit, it would be difficult given that her children attend different activities in different locations. She also noted that it might not be possible on weekends when public transit schedules change. Her former husband has refused to assist her in taking the children to their activities.
Because the Appellant must leave earlier in the mornings to take the bus to work, she has had to ask the babysitter to come in the mornings beginning at 7:00 a.m. and is paying $50 a day for the additional time. She estimated that the additional cost of child care has totalled $500 since the impoundment. If the babysitter is unable to arrive at the earlier morning time or has to leave earlier in the afternoons, the Appellant has had to ask neighbours to assist or has arrived late at her work or left early.
The Appellant testified that as a result of having to rely on public transit and/or assistance from friends or co-workers, her work hours have been somewhat erratic since the impoundment. Although she has not missed any work, she has not always been able to work a full shift. Her employer is aware of her situation.
While she has some flexibility with her work, some of which can be done from home, she noted that her employer is becoming less tolerant because she has had to cancel a number of meetings.
The Appellant owns a second vehicle, which is newer than the impounded vehicle and has been driven fewer kilometres. However, she testified that while it has a current licence sticker and is insured, it requires what she estimated to be $1500 to $2000 in repairs. She stated that she normally receives a Christmas bonus in her employment and her plan was to have the vehicle repaired when she received this. The Appellant has primary custody of her children and receives no child support. She has remained in the family home and has assumed the mortgage payment. The Appellant testified that she cannot afford to rent a vehicle or to put the car repair expense on credit but has considered asking her mother for a loan to enable her to have the vehicle repaired now. However, she indicated that she was awaiting the outcome of this hearing in order to decide how best to proceed. She also stated that immediately after the impoundment, the suspended driver offered to assist her but she has not spoken to him since. She no longer trusts him given her experience with trusting him to drive.
The Appellant has sought part time work in order to earn extra income. The work involves catering for events and is very sporadic. She has earned approximately $200 since the impoundment. She noted that it would be easier to do this work with her vehicle and estimated that it would take three months after the return of her vehicle for her to earn the $500 she has already spent in additional babysitting fees. She stated that her vacation plans were to take her children to local attractions during the summer and that she would forgo this if she needed the funds to pay her additional costs.
The Appellant testified that she is under considerable stress from worry about the financial impact of the impoundment, including the significant costs of releasing the vehicle. She has also found the daily effort to rearrange her schedule and find rides for her children stressful. However, she indicated that she, and her children, are in good health.
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under a lifetime suspension.
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 believed that the suspended driver had a valid licence because, having worked with him for many years, she had witnessed him driving and renting vehicles. She had also seen him use a driver’s licence for identification purposes, although this was in March, 2014. While the Appellant testified that before she asked the suspended driver, more than once, if he was sure about driving before she handed him her keys, she also admitted that she trusted him and therefore did not ask to see his driver’s licence.
The Tribunal finds that she did not make reasonable efforts to confirm his licence was valid by, at a minimum, asking to see it, and therefore finds that she 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.
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 has made considerable effort to investigate options to the impounded vehicle. She has been able to use public transit to reach her work, although the resulting increased length of her commute has required her to hire her babysitter for morning shifts at the cost of an additional $50 per day. She has missed no work. She has been able to make arrangements with colleagues or friends for occasional rides home from her work. Similarly, although one of her children has missed one activity on one occasion, the Appellant has been able to make carpooling arrangements.
The Appellant also has a second vehicle. Although this second vehicle is newer and has been driven fewer kilometres than the impounded vehicle, it is currently not in working order. She testified that she did plan to have repairs made and was counting on using an annual Christmas bonus later this year to pay for those repairs. She noted that she was waiting for the outcome of this appeal but was considering asking her mother for interim financial assistance to have the repairs done now. In addition, she has taken on occasional part time catering work to defray the additional babysitting costs she has incurred. She also indicated that if she had a vehicle, she would be able to do more of this additional work. Accelerating the repair of this second vehicle is an additional option to the impounded vehicle which the Appellant has clearly considered but has chosen to delay acting upon. The Tribunal also notes that the suspended driver offered assistance immediately after the incident but the Appellant has not followed up on it.
The evidence indicates that the Appellant has an alternative available to the use of the impounded vehicle and therefore she has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
The Tribunal notes that the Appellant testified that she is under considerable stress from worry about the financial impact of the impoundment. For the Appellant’s information, the Act provides for the ability to recover the costs of the impoundment from the suspended driver. Section 55.1(27) states:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
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 13, 2014