9156 v. Registrar of Motor Vehicles, 2014 CanLII 70027

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-10

FILE:

9156/MVIA

CASE NAME:

9156 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 by teleconference:

October 30, 2014

REASONS FOR DECISION AND ORDER

A hearing was held on October 30, 2014, by teleconference 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 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: Appellant

Motor Vehicle: 2011 FORD FUSION (the “vehicle”)

Date of Appeal: October 10, 2014

All other 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’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. The Notice of Appeal states that the loss of the impounded vehicle will cause exceptional hardship not only to the Appellant but to his family. The Appellant explains that as the father of a newborn (born September 18, 2014) child who is’sick’, he is concerned that the child will not be able to attend upcoming doctor’s appointments. The Appellant further notes that at the this time he is suffering from depression due to the death of a close friend, at whose funeral he cannot be present since he has no vehicle. According to the Appellant, he is in the military but currently on paternity leave, collecting “EI”, thus not able to incur all the costs associated with the impoundment.

During the hearing, the Appellant raised the issue of due diligence affirming that he did everything he could to ascertain that he had a valid driver’s licence, and in fact had a licence in his possession given to him by the applicable ministry in New Brunswick. According to the Appellant, he had always driven with a valid New Brunswick licence even while living in Ontario; after his convictions the Appellant paid his fines in Ontario and went to New Brunswick, around September, to renew his licence. The Appellant attested that he questioned a clerk at the issuing office in New Brunswick whether there were any restrictions on his licence, and was told that he was clear.

The Appellant testified that since he is in the military he moves around a lot and has no permanent residence; the address used is his sister’s in Ottawa.

The Appellant testified that feels that he is getting the run around and being told different things by different government departments. Appellant admitted to being convicted in Ontario, but claims that he was informed by his lawyer that the suspension would be lifted after six months and that he never received any communication from the Ministry advising otherwise. The Tribunal notes that on his notice of Appeal, the Appellant stated that ‘this was the first time he had driven since his suspension. All other times, it was my partner driving”

With respect to exceptional hardship, the Appellant reiterated the comments about his son’s health, clarifying that he purchased the vehicle for his partner and his child so that his son can go to scheduled doctor’s appointments in New Brunswick where the baby was born.

The Appellant detailed the events that led to the vehicle impoundment while he, his partner and child were visiting family and friends in Ontario.

According to the Appellant he has been staying in hotels and with family in Ottawa because he has no means of getting home. According to the Appellant his son has already missed a couple of doctor’s appointments in New Brunswick.

In cross-examination, the Appellant confirmed that he has a New Brunswick licence and has had for some time.

The Registrar’s Agent attempted to determine which government agencies the Appellant contacted and what he was told. The Appellant described some of the conversations he had around the interlock programme but was unable to confirm who in the Ontario Ministry of Transportation specifically told him his licence was valid.

The Appellant attested that since the impoundment he has been living in Ottawa as he cannot afford to return to New Brunswick. According to the Appellant his son has missed two medical appointments scheduled for the 16^th and the 20^th of October, nonetheless the Appellant did not feel that there was any immediate threat to the health of the child.

As far as the daily routine, the Appellant has been able to manage to obtain the basic necessities with his sister’s help and the use of her car.

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 until March 25, 2015.

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, 3^rd 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, 3^rd 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 stressed that this incident has been a “roller coaster”, he maintains that he has done his best to deal with the situation and that right now all he wants is to get the car back so that he can take his family to New Brunswick.

The Registrar’s Agent maintains that there is no doubt the driver was under suspension.

Touching on the due diligence issue raised by the Appellant at the hearing, the Registrar’s Agent pointed out that the Appellant’s Ontario licence is not only suspended but has been expired for over a year. Regarding the “run around” alleged by the Appellant, the Registrar’s Agent argued that most of the discussions appeared to have been about the interlock programme and it was not established that at any time the Appellant was told he had a valid driver’s licence in Ontario. According to the Registrar’s Agent, driving with a New Brunswick licence appears to be “self justification”, not an exercise of due diligence as required by the Act. Thus, the ground of due diligence is not applicable in this matter.

With regards to exceptional hardship, the Registrar’s Agent noted that the Appellant has alternative transportation available to him, as he is living with his sister who owns a vehicle that has been used by the Appellant to get groceries. Further the Registrar’s Agent submits that there is public transportation available where the Appellant currently resides.

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

The Tribunal concurs with the Registrar’s Agent that evidence shows that the person having care and control of the vehicle at the time of impoundment, the Appellant, did not in fact have a valid driver’s licence.

The Appellant admitted to being aware of the suspension in Ontario but claims that he believed he would be able to drive since he had obtained a New Brunswick driver’s licence. The Tribunal heard evidence that the Appellant called various government departments, but provided no particulars and had no documented evidence that he could drive in Ontario. The statements on the Notice of Appeal strongly suggest that he did in fact know that his licence was under suspension; he states, for example, that “I made a foolish decision to drive a few blocks so the mother could soothe the baby.” Had the Appellant exercised due diligence he would have found that not only was his licence suspended it is expired. Thus, the Tribunal finds that the ground of due diligence under section 50.2(3)(c) is not met.

With respect to exceptional hardship, Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:

10. (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…

Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. The evidence is clear that the Appellant not only has access to public transportation, he has the use of his sister’s vehicle, though presumably he is not driving it. .

As far as health and safety, issues are concerned, the Appellant did mention that his son has been sick and required medical attention; a couple of medical appointments have been missed since the baby’s physician is in New Brunswick and the family is currently in Ottawa. Thus, the Tribunal considered invoking clause section 10(1) of Ontario Regulation 631/98 which prescribes that:

10. (1) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, whether the impoundment will result in,

a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

By the Appellant’s own admission, the child is no immediate danger and the delay in keeping the doctor’s appointments will not result in any harm to the child. As the family is currently in Ottawa where emergency service could be immediately available, and medical care for the baby would undoubtedly be available if needed, the Tribunal cannot find that the evidence meets the criteria of the section 10(1) of Ontario Regulation 631/98.

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

Dr. Antoine A. Aouad, Presiding Member

Released: November 10, 2014