9307 v. Registrar of Motor Vehicles, 2015 CanLII 20249

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2015-02-23

FILE: 9307/MVIA

CASE NAME: 9307 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: ANTOINE AOUAD, M.D., Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent Sanjay Kapur, Agent

Heard by teleconference: January 20, 2015

REASONS FOR DECISION

A hearing was held on January 20, 2015, 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”).

Pursuant to section 50.2 (5) the Tribunal, by order dated January 22, 2015, confirmed the impoundment 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: 2002 FORD COFN (the “vehicle”)

Date of Appeal: December 30, 2014

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 #2), 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, 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 Notice of Appeal filed with the Tribunal was entered as Exhibit #2. In the Notice of Appeal, the Appellant states that he was certain the suspended driver had a valid driver’s licence in that the suspended driver had shown him the licence in the spring of 2013. According to the Appellant, the suspended driver “went to great lengths… to cause…” the Appellant to believe he had a valid licence, and in fact confirmed it orally, when in 2014, he again began working for Appellant.

The Appellant expressed his concern over the urgency of this matter, as he runs a small winter business that is dependent on having the truck available for snow removal. The Appellant further states that he will be unable to afford the cost of the impoundment fees.

During the hearing, the Appellant reiterated his statements on the Notice of Appeal, explaining that before hiring the suspended driver a year and half ago, he asked for his licence number and verified that his birth date. Subsequently, according to the Appellant, when interviewing the suspended driver, the Appellant saw his driver licence in his wallet, but did not ask him to take it out. During the time the Appellant knew the suspended driver, he saw him drive several times, and never suspected he did not have a licence particularly since this person demonstrated his honesty in other ways.

With respect to exceptional hardship, the Appellant emphasized that he has lost some customers due to not having a vehicle and that his losses are significant and long lasting which he believes meet the criteria of exceptional hardship. The Appellant attested that since he rents to own, he runs the risk of losing his house. Further, according to the Appellant, the impoundment would not have been so bad in the summer, but it is very damaging in the winter, as in the event of a major snowfall, the Appellant needs to be ready to clear his clients’ driveways and walkways. The Appellant stated that, as of the date of the hearing, this winter has not been so bad, nonetheless he had to hire someone with a truck to take up his own duties which, unless he has his vehicle returned, will probably cause him to go broke.

In cross-examination, the Appellant confirmed that his business is still in operation, nonetheless he has lost a considerable amount of money since he was not able to meet his responsibilities with the clients. Further, the Appellant attested that the truck is not worth the amount of the impoundment fees and he might just let it go.

The Appellant confirmed that he had hired someone with a truck, but unless he can get his own truck back, he “might just pack it in”, as the costs are higher and there is little or no profit left. He attested that his personal life is not being affected as much as the business since in the winter he needs the truck to carry the snow blowers and shovels needed to clear driveways. He does own a vehicle for personal use.

According to the Appellant, trying to rent a vehicle was not an option as the rental companies do not want them to be used for commercial purposes.

The Appellant affirmed that he has lost money, as some of his clients put a stop payment on their cheques because they were dissatisfied with the service being late. Further, the Appellant repeated that, due to the loss and the extra expenses, he will not be able to meet his commitment with respect to rent to own and might end up losing the house.

Responding to the Tribunal’s questions by way of clarification, the Appellant admitted that he only saw the suspended driver’s licence while it was still in his wallet and did not clearly see the picture and definitely not the expiry date.

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 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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 21, 2020.

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 recognized that he was not “super, super diligent”, but emphasized the suspended driver fooled everyone. The Appellant maintained that now he is aware of the situation he will never put himself in a similar position.

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, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended, and that in fact he had never had a driver’s licence. The Tribunal notes that the documents produced by the Registrar indicate that the driver was in fact, not only ‘suspended’, but actually never licensed, which would appear to be somewhat anomalous given that he appeared to be carrying a licence.

As far as exceptional hardship,, the Registrar’s Agent, referred to Ontario Regulation 631/98, subsection 10, pointing out that the appeal does not meet the criteria as the Appellant has a second vehicle which he has been using for his personal life, thus alternative transportation is available. As far as financial losses are concerned, the Tribunal is precluded to look at any losses as there is an alternative vehicle available to the Appellant, as well, he has been able to hire someone to assist with continuing the business.

The Registrar’s Agent quoted Section 55.1(27) which, according to the Registrar’s Agent, precludes the Tribunal from considering the costs of impoundment, such as towing as impoundment fees, as exceptional hardship.

With respect to whether the Appellant exercised due diligence, the Registrar’s Agent argued that the Appellant admitted to “messing up” and doing nothing to verify the validity of the suspended driver’s licence. The facts are the suspended driver had never been licenced and had the Appellant exercised due diligence he would have been aware of this fact a year and a half ago.

In addressing first the issue of due diligence, the Tribunal finds as it had in the past that simply asking a driver about the validity of a driver’s licence is not sufficient. It was incumbent upon the Appellant to at least examine the driver’s licence of the person to whom he was giving the vehicle to drive. By his own admission, the Appellant saw the suspended driver’s licence in the suspended driver’s wallet, but did not examine it and was unable to verify the picture or the expiry date. Thus, the Tribunal finds that the ground of due diligence under s. 50.2(3)(c) has not been met.

Turning to the ground of ‘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. Given the evidence, there is no doubt that the Appellant owns another vehicle which he uses to carry on his daily activities. Further, he has been able to hire someone with a truck to assist with his business customers. Thus, since alternative transportation is available, the Tribunal, given the very restrictive wording of the Act, cannot consider this ground of appeal further.

Even if the Tribunal could find on these facts that there is no reasonable alternative transportation, the Tribunal notes ,that while the evidence indicates that there have been some losses, the evidence does not indicate whether in fact those losses are result of the impoundment of the vehicle.

Given the facts, and the provisions of the Act, though the Tribunal does have sympathy with the Appellant’s predicament, ,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

________________________________

Antoine Aouad, M.D., Member

RELEASED: February 23, 2015