Licence Appeal Tribunal
File: 9096/MVIA
Case Name: 9096 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.
9096 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: September 29, 2014
REASONS FOR DECISION AND ORDER
A hearing was held on September 29, 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 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: 2012 FORD FSE (the “vehicle”)
Date of Appeal: September 8, 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. In the Notice of Appeal, the Appellant explains that his conviction happened in the United States and that he was advised by his U. S. lawyer of the possibility his Canadian licence would be affected, but assured that he would be notified if that were to happen. With respect to hardship, the Appellant describes his present circumstances as dire, emphasizing that he is on the verge of losing his house due to the costs surrounding this incident.
During the hearing, the Appellant asserted that he did not receive a notice of suspension until after he was stopped and the vehicle impounded, as such he was unaware of the suspension.
In cross-examination, when asked specifically how he exercised due diligence, the Appellant affirmed that he followed his U. S. lawyer’s instructions by keeping watch on the mail but did not contact the Ministry of Transportation.
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;
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 Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 10, 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:
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.
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 expressed his anger about what he feels is the injustice of the situation, where he is being penalized for driving without a licence, which he asserts is something he would not do, had he been properly advised by the Ministry of Transportation. The Appellant was adamant that he followed the advice of his U.S. lawyer in that he feels that he did his due diligence by routinely watching his mail for any notices, and further believes that it is not his responsibility to do the Ministry’s job.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension.
With respect to due diligence, the Registrar’s Agent suggests that it is not in the Tribunal’s “jurisdiction” to consider whether the notice from the Ministry was sent or received. The fact is, the Registrar’s Agent maintained, that the Appellant continued driving after his suspension in the States and that it was incumbent on the Appellant to check with the Ministry.
Regarding exceptional hardship, the Registrar’s Agent noted that since the Appellant is both the suspended driver and the owner of the impounded vehicle, the Tribunal is precluded by section 10.3(d)(ii) from considering this ground of appeal.
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 the evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.
The Tribunal will look first to the due diligence ground for appeal. The Appellant admitted be being aware of the suspension in the United States and being warned of the possibility that the suspension would carry to Canada. He waited for a letter to let him know that his licence had been suspended in Ontario, because his U.S. lawyer had assured him that he would be notified of any suspension here. He failed to contact the Ministry of Transportation to verify the status of his licence.
The Tribunal finds that waiting for a letter from the Ministry in these circumstances is too passive of a response to this serious situation, and the Appellant should not have taken the risk of driving in Ontario without checking into the status of his driver’s licence here. Despite the U.S. lawyer saying that the Appellant would be notified about his suspension here in Ontario, it would appear that his suspension here did not depend upon the Ministry of Transportation sending a letter to the Appellant. The Tribunal notes that s. 41(1)(d) of the HTA refers to the suspension of an Ontario driver’s licence when the person is convicted of certain offences under a provision that is enacted by another jurisdiction that is designated under a reciprocal agreement under s. 40 (Ontario Regulation 37/93 indicates that this covers Michigan and New York). If the Appellant had inquired further, he would likely have found out that his licence was indeed under suspension, and that this did not depend upon receiving any official letter from the Ministry. Thus, the Tribunal finds that the ground of due diligence under section 50.2(3)(c) is not met.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:
- (3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,
(d) the impact of the loss,
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
Since the Appellant was the suspended driver at the time of the impoundment, the Tribunal’s enquiry must come to an end and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.
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: October 27, 2014