Licence Appeal Tribunal
Appeal en matière de permis
FILE: 8933/MVIA
CASE NAME: 8933 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
8933 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Nives Montano, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: July 29, 2014
REASONS FOR DECISION
A hearing was held on July 29, 2014, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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: 2008 Kia Rio 5 (the “vehicle”)
Date of Appeal: July 9, 2014
All documents were entered into evidence as exhibits with the consent of both parties. The hearing proceeded.
ISSUES
As set out in the Appellant’s Notice of Appeal, 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 affirmed evidence follows.
The Appellant is married with children. Both he and his wife are employed full-time. The Appellant holds a managerial position at a grocery store, and his wife works for the City and drives a vehicle owned by the City.
The youngest of the Appellant’s children is 10 years old and has Type 1 diabetes. She is regularly monitored in the event of a hypoglycaemic event. During the summer months, she has been enrolled in a daycare where there are no special-needs workers at the daycare. The Appellant and/or his wife receive daily phone calls from the daycare regarding their daughter’s well-being and have, during the course of the summer, taken her out of the daycare one or two times per week for a few hours to regulate her blood sugars.
The Appellant’s stepson, the driver at the time the vehicle was impounded, is 21 years old. He moved away from home and moved in with friends about 5 months ago. He moved back home last month after he was convicted of drinking and driving and his driver’s licence was suspended. Two other children, in their twenties, live out of town and do not own vehicles.
On the day the vehicle was impounded, the Appellant and his wife drove their youngest child to a soccer game with the wife’s vehicle. While on the field, the Appellant’s wife received a text message from her son informing her that he took their vehicle and it was now impounded. He was on his way to visit his father, but the vehicle was stopped by police for speeding and possibly street-racing. The Appellant’s wife called the father of the suspended driver to go to the incident site as she feared for her son since his text messages were erratic.
Hours after the vehicle was impounded, the Appellant’s wife received a phone call that her father passed away in Halifax due to a motorcycle accident. The Appellant paid for his wife, stepson, sister-in-law and nephew’s flight to Halifax to attend the funeral. The Appellant and his youngest daughter stayed home.
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 of Motor Vehicles regarding the impoundment;
- Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 10, 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:
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.
Section 55.1(27) of the Act provides that the owner of a motor vehicle that is impounded under s. 55.1 may bring an action against the person who was driving the vehicle at the time the vehicle was detained, to recover any costs or other losses incurred by the owner in connection with the impoundment.
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:
- 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
Although the Appellant included the ground of due diligence when he filed his Notice of Appeal with the Tribunal, the Appellant conceded that he could not continue with this ground of appeal. The Appellant was aware of his stepson’s suspension and at no point in time was his stepson given permission to drive his vehicle. However, the Appellant did not take any precautionary measures to secure his vehicle’s key and/or verbally instruct his stepson not to operate any motor vehicles.
This ground of appeal has therefore been withdrawn by the Appellant.
The Appellant made his case quite clear that his daughter’s health and safety is his priority. He and his wife have managed to keep her under a watchful eye during this impoundment period. The Appellant testified that during the impoundment period, their daughter, up to and including the hearing date, has only attended daycare for 3 days and is currently away at a diabetic camp for one week.
The Appellant and his wife have not missed any days from work due to the vehicle’s impoundment. They were each off work for 1 ½ weeks which included bereavement leave and vacation time for which they were each paid by their places of employment. The Appellant has been driven to and from work on most days by his wife. On occasion, the Appellant was driven by a co-worker. The Appellant advised the Tribunal that he will make the necessary arrangements to get to work these last few days before the vehicle is released.
Both the Appellant and his wife are in good health and no medical appointments have been missed to date. There is an ambulatory service 5 minutes from the daycare; their community is 911 accessible and the hospital is 20 minutes away in the event of an emergency. Since the impoundment, their daughter has not had any diabetic episodes.
For this appeal to be successful, the first and foremost criterion the Appellant must demonstrate is that there is no alternative means of transportation available to the impounded vehicle. The Tribunal is very sympathetic with the Appellant’s current situation, but the fact remains that he has managed with the help of his wife and co-worker since his vehicle’s impoundment. Since there have been alternative means of transportation available, the Tribunal cannot consider the financial impact the impounded vehicle will cause the Appellant.
After considering the criteria set out in section 10(1) of O. Reg. 631/98, the Tribunal finds that the Appellant has not established exceptional hardship as set out in section 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
Nives Montano, Member
Released: August 7, 2014