Licence Appeal Tribunal
Date: 2014-11-14 File: 9158/MVIA Case Name: 9158 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: 9158 Respondent: Registrar of Motor Vehicles
Reasons for Decision
Adjudicator: Dr. Antoine A. Aouad, Member
Appearances: For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: November 4, 2014
Reasons for Decision
A hearing was held on November 4, 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 November 5, 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: the Appellant
Motor Vehicle: 2006 CHRY STO (the “vehicle”)
Date of Appeal: October 10, 2014
All documents were entered into evidence as exhibits with the consent of both parties.
Issues
As set out in the Appellant’s Notice of Appeal (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, both as provided in sections 50.2(3)(c) 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?
Facts
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant’s written submission in her Notice of Appeal filed with the Tribunal in support of the appeal was entered as Exhibit #1. The Appellant states that she is a single mother and that her “livelihood” depends on the return of her vehicle as it is required to get her to and from work. Further, the Appellant explains that she in the midst of a transaction to purchase a home and that if she has to pay the impoundment fees, she will not be able to pay the required amount on closing on November 7, 2014.
The Appellant writes: “I was under the understanding that he possessed a valid driver’s licence as I visually saw his driver’s licence with nothing stating otherwise”.
During the hearing, the Appellant reiterated the statements in the Notice of Appeal. The Appellant stated that the suspended driver was her building contractor and, that she had seen the suspended driver’s licence and that she had also seen him drive a vehicle.
The Appellant explained the circumstances under which she allowed the suspended driver to drive, emphasizing that she was a “victim” in that she was certain he had a valid licence since she had seen it in his wallet, “a couple of days before” the impoundment.
The Appellant testified that if she is required to pay the impoundment fees she will lose the house she is in the process of closing.
In cross-examination, the Appellant attested that although the downtown city has public transportation, it does not go to the outskirts where she works, so that she has had to depend on co-workers to get to work. The Appellant affirmed that she has missed “four or five days of work” due to lack of transportation. According to the Appellant, she also needs the vehicle to go to the bank for the company she works for as an office manager.
The Appellant confirmed that she had seen the suspended driver’s licence but did not actually handle it.
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 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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation’s records indicating that the driver at the time of impoundment had been convicted of Failed To Provide Breath Or Blood Sample 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:
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.
The second issue is whether the impoundment will cause excessive 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 submissions, the Appellant asserted that she will not lend her vehicle to anyone again, and that she is afraid to lose her house if she cannot come up with the down payment.
In his closing submissions, 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 due diligence, the Registrar’s Agent maintains that it is not enough to simply to “catch a glimpse” of a driver’s licence, particularly if this happened sometime before the impoundment. The Registrar’s Agent submitted that it is incumbent upon the owner of a vehicle to exercise due diligence before allowing the vehicle to be driven.
With respect to exceptional hardship, the Registrar’s Agent argues that this ground cannot be considered as the Appellant has managed to obtain alternative transportation to get about. There is public transportation in the city where the Appellant lives; as well, she had used cabs and been driven by her co-workers.
The Registrar’s Agent pointed out that Regulation 631/98 does not permit the Tribunal to access exceptional hardship on the basis of the impoundment costs.
The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal found the Appellant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. Further, the Appellant’s credibility was not challenged by the Registrar’s Agent.
The Appellant testified that she had actually seen the suspended driver’s licence a couple of days before the incident. The Tribunal does not accept the submission of the Registrar’s Agent that this checking of the driver’s licence was done too far removed in time from the impoundment.
The Tribunal also does not find a lack of due diligence in these specific circumstances where the Appellant lent her car to her contractor when this was someone who was working with her, and she had actually seen the person’s driver’s licence, and there was nothing that raised suspicions that the driver was suspended or that the driver was lying to her or withholding information from her about his licence status. The Tribunal finds that due diligence in these specific circumstances does not require this Appellant to be aware of the possibility that she could or should contact the Ministry of Transportation by telephone or through their website prior to lending her vehicle to this contractor. The Tribunal finds that this Appellant’s assumption that her contractor had a valid driver’s licence, after actually seeing a driver’s licence in his wallet, was plausible and reasonable, and there was enough to constitute due diligence. Thus, the Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Regulation has been met.
Having decided in favour of the Appellant in the matter of due diligence, the Tribunal need not consider the grounds 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: November 14, 2014