Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9392/MVIA
CASE NAME: 9392 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.
Tallman Truck Center Limited Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Connie Lamble, Counsel
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: March 10, 2015
REASONS FOR DECISION
A hearing was held on March 10, 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 “HTA” or the “Act”).
THE Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the HTA. As a result, the Applicant’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: The Appellant
Motor Vehicle: 2014, INTL, 40S (the “vehicle”)
Date of Appeal: February 13, 2015
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.
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?
Issue 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, given by Mike McIntosh, the owner and president of Total Move Management, the lessor of the impounded vehicle
He testified that he is owner and president of a certified moving company. He operates three vehicles and provides local and inter-provincial moving and storage services. The impounded vehicle represents the largest vehicle of the company’s hauling capacity. The suspended driver was employed in October 2013 as the company’s operations manager. When the vehicle was impounded Mr. McIntosh was out of the country on vacation. He had entrusted the suspended driver with running the company’s daily operations. As a result of the vehicle impoundment, the suspended driver’s employment was terminated.
He stated that the company routinely verifies the driving record of the drivers and obtains drivers’ abstracts to submit to their insurance company. As the suspended driver was not hired as a driver, and on the advice of the insurance broker, they did not check the validity of his licence. He had known the suspended driver for 15 years prior to hiring him. He was unaware that his licence was suspended and had seen him driving his personal vehicle on several occasions.
He testified that the loss of the impounded vehicle has had a significant impact on the business. To maintain the services to clients, he has rented smaller replacement vehicles which are costly and result in the need for multiple trips to meet the moving commitments. His ability to provide a full range services has been limited. Since the vehicle impoundment, he estimates the volume of business has decreased and the company has incurred a significant loss of revenue.
In cross-examination, Mr. McIntosh acknowledged that, on some occasions, the suspended driver, as an operations manager, may have been required to drive short distances to move a company vehicle. He could also replace a driver who was absent for a scheduled move. He regrets that he did not check the validity of the suspended driver’s licence and his company has taken steps to change their policy. In the future, they intend to verify the driving licences of all employees.
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 and the driver at the time of the impoundment, as owners;
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;
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 on January 15, 2009 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 suspended for life.
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.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- 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 if the owner demonstrates that
- 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 also 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, Counsel for the Appellant submitted that the Appellant exercised “due diligence” in checking the driving record of drivers and was misled by the insurance broker who advised it was not a requirement for other employees of the company. The Appellant has no previous violations under the Act and steps have been taken to ensure that a similar situation does not recur. The Appellant has incurred a significant loss of revenue as a result of the vehicle impoundment.
In her summary statements, the Agent for the Registrar asked the Tribunal to confirm the decision of the Registrar.
The legislation requires an owner of the motor vehicle to make efforts to determine whether or not the licence of the person who is to drive the owner’s vehicle is valid. The courts have held that to rely on a defence of due diligence, an Appellant must demonstrate that reasonable steps were taken to ensure the validity of the driver’s licence.
In his evidence, Mr. McIntosh stated that the duties of the suspended driver included maintenance of a truck fleet. In circumstances such as this, knowing fully well that the suspended driver could be required to drive vehicles from time to time, and in fact, did from time to time, it was incumbent upon the Appellant to ensure he had a valid driver’s licence. That is a responsibility which cannot be delegated to the insurance broker.
The Tribunal finds that the ground of due diligence under s.50.2 (3) (c) has not been met.
The provisions in section 10 of Ont. Reg. 631/98 are very strict and require that the Appellant demonstrates that every reasonable option to the impounded vehicle has been considered.
In this case, Mr. McIntosh’s testimony established that he has rented other vehicles and has alternatives to the impounded vehicle. Although the vehicles are smaller and inconvenient at times, the company has been able to operate and the employees are still working. While the Tribunal appreciates that this may be a cost to the business and has resulted in a reduction in its revenue, the Tribunal cannot consider this cost in determining whether the impoundment will result in exceptional hardship.
The Tribunal finds that the Appellant has not met the ground under Section 10(3) (a) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available”.
Therefore, the appeal on the grounds of due diligence and exceptional hardship has failed.
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
Geneviève Blais, Member
Released: March 16, 2015