Muskoka Finest Stone Inc. v. Registrar of Motor Vehicles, 2014 CanLII 70031

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-10-27

FILE:

9117/MVIA

CASE NAME:

9117 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.

Muskoka Finest Stone Inc.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant:

Jerry Henderson, Agent

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

October 14, 2014

REASONS FOR DECISION AND ORDER

A hearing was held on October 14, 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”).

After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal ordered the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on October 15, 2014, with reasons to follow.

These are the reasons for the Tribunal’s Order.

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: 2004 DODG RPC (the “vehicle”)

Date of Appeal: September 19, 2014

As a preliminary matter, the Registrar’s Agent asked that the Appellant’s witness be excluded. As the hearing was held by way of a teleconference, the Tribunal determined that in the circumstances it was not feasible to do so and did not grant an order to exclude.

After the commencement of the hearing, the fact that the Appellant had not received the disclosure package forwarded by the Ministry was brought to the Tribunal’s attention. The Registrar’s Agent was called upon to provide a description of the documents included the package. The Appellant’s Agent was given an opportunity to adjourn, but opted to proceed with the hearing.

During the hearing, it was ascertained that the Appellant did have a copy of the suspended driver‘s licence on file. The Tribunal granted the Appellant six hours to produce a copy of the licence, and the Registrar’s Agent, 24 hours to reply.

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 Appellant’s written submissions, prepared by the corporation’s Agent filed with the Tribunal in support of the appeal, were entered as Exhibit # 1. In the Notice of Appeal, the Appellant’s Agent states that prior to him being hired as a driver, the suspended driver did show the Appellant’s Agent, in front of a witness, his driver’s licence. A copy was made and kept on file at the corporation’s office.

Attached to the Notice of Appeal, the Appellant’s Agent submitted an unsworn document purporting to be an “Affidavit”, wherein the various signatures affirm to having been a witness to the facts as set out in the “Affidavit”. Both the Notice of Appeal and the “Affidavit” describe the efforts made by the appellant’s Agent to secure a copy of the driver’s licence.

A copy of the suspended driver’s licence was forwarded to the Tribunal after the hearing in compliance with the Tribunal’s request.

During the hearing, the Appellant’s Agent reiterated, under oath the statement in the Notice of Appeal. The Appellant’s Agent attested that at the time he saw the driver’s licence it appeared to be valid, but he did not remember the expiry date.

In cross-examination, the Appellant’s Agent testified that the company owns other vehicles and has continued to operate since the impoundment. According to the Appellant’s Agent, the vehicle is used to transport the foreman and other employees to the job site.

According to the Appellant’s Agent, the company does not require a driver’s abstract. They simply keep a copy of the driver’s licence on file and do not follow up with the Ministry to verify the validity of driver’s licence.

The Appellant’s Agent called Ryan Goodman as a witness. The witness testified that he signed the “Affidavit” and that he saw the suspended driver’s licence, but did not check the expiry date.

In cross-examination, the witness confirmed that he did not checking the expiry date and is not aware if anyone did.

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 Dangerous Driving 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 stated that this was a misunderstanding and that these things happen but steps are being taken to ensure that a similar incident will not happen again.

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. With respect to exceptional hardship, the Registrar’s Agent argued that this ground cannot be considered as the clause that pertains to a person ordinarily transported by the vehicle cannot be transferred to a corporation. Further the business has continued to operate since the impoundment.

In regard to due diligence, the Registrar’s Agent maintains it is not enough to simply ask to view a driver’s licence. The Registrar’s Agent submitted that the annual cost of an abstract to a business is minimal and this procedure should have should have been followed

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

With respect to the issue of due diligence, the Tribunal found the Appellant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. Further, after viewing a copy of the licence forwarded to the Tribunal after the hearing, the Tribunal is satisfied with the veracity of the statements made. The Appellant did make genuine and credible efforts to inspect the driver’s licence. Having inspected it, there was no reason to suspect that it was not valid. The owner exercised the requisite due diligence. The Registrar’s Agent did not challenge the credibility of the Appellant’s testimony, nor the authenticity of the copy of the licence submitted. The Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Regulation is met.

Having decided in favour of the Appellant in the matter of due diligence, the Tribunal is not required to look into the matter 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, Member

Released: October 27, 2014