ADV Care Pharmacy v. Registrar of Motor Vehicles, 2014 CanLII 70026

Licence Appeal Tribunal

Appeal d'appel en matière de permis

DATE: 2014-10-16

FILE: 9114/MVIA

CASE NAME: 9114 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.

ADV Care Pharmacy Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant: Amr Bannis, Agent

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: October 8, 2014

REASONS FOR DECISION AND ORDER

A hearing was held on October 08, 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:

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 90 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: Appellant

Motor Vehicle: 1999 ACURA ELS (the “vehicle”)

Date of Appeal: September 11, 2014

As a preliminary matter, the Tribunal reviewed a Notice of Motion received by the Tribunal on September 12, 2014, one day after the Notice of Appeal was submitted to the Tribunal.

The Appellant contends that he filed the appeal one day after the prescribed 15 day period for appeal, as he was busy and was not immediately notified when the Notice of Impoundment was received.

The Registrar’s Agent argued for the dismissal of the appeal, on the grounds a busy life is not a justifiable cause for late filing, and there is no evidence of mitigating circumstances such as hospitalization or illness as previously considered by the Tribunal.

The Tribunal ruled in favour of the Appellant and the hearing proceeded.

All documents were entered into evidence as exhibits with the consent of both parties.

ISSUES

As set out in the Appellant’s request for hearing (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, all 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 corporation. The written submissions filed with the Tribunal in support of the appeal, entered as Exhibit # 1, were prepared by its agent. In the Notice of Appeal, received by Tribunal on September 11, 2014, the Appellant’s Agent states that:

The vehicle is "used on a daily basis making pick up of goods and deliveries to customers;"As a small business it is not feasible for the company "to hire a private company or driver" as the expenses would result in “great losses to …organization and customers ...would go through hardship not receiving their deliveries.”

On the Notice of Appeal received by the Tribunal on September 19, 2014, the Appellant’s Agent maintains that information received from the suspended driver indicated that the licence suspension and Court ordered remedial course had been completed, and there was no mention of any further suspensions imposed.

During the hearing, the Appellant’s Agent, testifying on behalf of the corporation, stated that the vehicle is used by the business, nonetheless the Appellant’s Agent is not sure why the employee took the car. Furthermore, according to the Appellant’s Agent, he was shown documents from the suspended driver that the suspension period of 2006-2008 was over, at some point subsequent to May 2008. He never asked to see his licence again.

In cross-examination, the witness asserted that he was aware of the suspension between 2006 and 2008; as it is now 2014, he did not think there would still be an issue. The Appellant’s Agent explained that the suspended driver having care and control of the vehicle at the time of the impoundment was not hired as “driver” rather he is a pharmacy assistant. In reply to the Registrar’s Agent’s question regarding the company’s policy concerning the people who drive the company’s vehicles, the Appellant’s Agent responded that there is no policy as everyone involved in the business knows each other.

By way of clarification, the Tribunal questioned the Appellant’s Agent if he was aware of the previous impoundment of the vehicle due to the same individual driving under suspension. He confirmed that he was aware and admitted to being negligent by not verifying the validity of the suspended driver’s licence.

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:

1. 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;

2. A copy of the notice prepared by the police 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content In Excess Of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.

The Registrar called no other evidence.

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:

1. 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.

2. 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.

3. 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) 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.

The section also provides that the Tribunal may not, except in certain circumstances, consider:

• 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 only if the owner demonstrates all of the following:

• 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

In closing, the Appellant’s Agent simply reiterated the company’s negligence in not checking the licence of the driver, and asked the Tribunal to reduce the time of suspension as a 90 day suspension will cause hardship.

In a 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. The evidence shows that the driver’s licence of the person driving the vehicle at the time of the impoundment was suspended.

Regarding exceptional hardship, the Registrar’s Agent pointed out that under Section 52.2 (4) the Appellant is precluded from appealing on the grounds of hardship as the vehicle owned by the Appellant has previously been impounded.

In terms of due diligence, the suspended driver’s licence has been expired since 2010, and it is clear that the company has no policy in place to verify driver’s licences of the employees who are allowed to drive the company’s vehicles.

In conclusion, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.

Prior to setting out the reasons for decision, the Tribunal must clarify that there is no jurisdiction in place allowing the Tribunal to reduce the number of days a vehicle can be impounded.

The onus is on the Appellant to establish its grounds of appeal as provided in section 50.2(3) of the Act. Subsection 50.2(4) of the Act 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.

There is incontrovertible evidence that the Appellant’s vehicle has been previously impounded due to the actions of the same unlicenced driver. As such, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.

The defence of due diligence under s. 50.2(3)(c) was not explicitly raised, but the Appellant’s evidence pointed to this as a possible grounds for appeal. Legislation clearly makes the owner of a motor vehicle responsible for those who are permitted to drive it. The evidence in this appeal raises the question of whether the owner was careful enough to check the driver’s licence status of the persons who drive the company’s vehicles. By his own admission, the Appellant’s Agent’s confirmed that the Appellant does not carry out any regular licence checks. In addition, this is an employee who had driven a company vehicle on a prior occasion, while suspended, resulting in an impoundment, which should have caused the company to exercise extra vigilance regarding this employee and his driving privileges. Therefore, the evidence does not support a due diligence defence.

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 90 days.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Presiding Member

Released: October 16, 2014