Licence Appeal Tribunal
FILE: 9375/MVIA
CASE NAME: 9375 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: 9375
-and-
Respondent: Registrar of Motor Vehicles
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: February 26, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on February 26, 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”). The Tribunal has reviewed the evidence and submissions and makes the following Order.
Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impoundment 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: 2009 DODG AXT (the “vehicle”)
Date of Appeal: February 9, 2015
By way of preliminary matters, the Tribunal heard a Motion to extend the time allow for the appeal. The Appellant states that the vehicle was impounded and returned. Subsequently, two days later, the police indicated that a mistake was made and re-impounded the vehicle.
The Registrar raised no objections to the Motion to extend time, and the hearing proceeded.
As the Registrar’s Agent did not receive a copy of the document regarding the number of hours at work lost by the Appellant due to the impoundment, that list was read to the Registrar’s Agent.
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 #2), the Appellant appeals on the basis that she exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended, and also 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 of Motor Vehicles (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.
During the hearing, the Appellant confirmed her statements in the Notice of Appeal that she was not aware that the suspended driver did not have a valid driver’s licence. They started dating a year ago and she had seen him driving on several occasions. Further, the Appellant had actually seen her boyfriend’s driver’s licence but did not verify if it was valid, and she now realizes that he must have shown her an expired licence. The suspended driver is living with the Appellant and her son.
On the grounds of exceptional hardship, the Appellant testified that she had to ask people to drive her to work, but has not always been successful, which is why she has missed a few days of work.
With respect to the other two vehicles that appear registered to her name, the Appellant explained that one was sold and the other is not road worthy.
The Appellant testified that she will not be able to come up with the thousands of dollars required to have the car released. Further, according to the Appellant, the car is not worth the cost.
In cross-examination, the Appellant confirmed that she is still employed and worked seven days a week because she is a union representative as well.
The Appellant testified that the supervisors are being patient but she is concerned about disciplinary action being taken, particularly since she has “clean record” with her employer.
According to the Appellant, in order to get to work, she has had to be picked up by her co-workers who have also missed some hours because they had to pick her up. As far as being able to purchase groceries, the Appellant confirmed that she has been driven by a friend.
The Registrar’s Agent questioned the Appellant as to whether she could use vacation days to cover the missed days. The Appellant responded that she had used all her vacation days.
The Appellant admitted to not researching public transportation to ascertain whether there are public transportation services available nearby; nor did she enquire about the possibility of hiring a taxi, because she felt she could not afford 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:
A 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 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 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 July 13, 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:
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 subsections 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 emphasized the extremely high costs of impoundment and, she also emphasized that the suspended driver will never drive her vehicle again.
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.
There was one legal argument made in relation to the Appellant’s vehicle having been impounded the second time after it had been released by the police, apparently in error. The Appellant submitted that this second impoundment was unlawful because her vehicle was not being driven by a suspended driver at that time. The Respondent argued that the authority to impound the vehicle for the initial reason (when it was driven by the Appellant’s boyfriend) continued to exist two weeks later even though the vehicle had been released apparently in error. The Tribunal would accept this argument, and in any event, the Tribunal may be restricted to dealing with four possible grounds of appeal set out in section 50.2(3).
With respect to the ground of exceptional hardship, the Registrar’s Agent referred to Ontario Regulation 631/98, section 10, pointing out that the appeal does not meet the criteria as the Appellant has been able to go to work and enlist the help of friends to buy her groceries.
As far as financial losses are concerned, the Tribunal is precluded from looking at any losses as the Appellant has alternative transportation available, and in any event, her losses cannot be proven to be long lasting. Further, the Appellant has made insufficient attempts to mitigate her losses, either by trying to make her second vehicle road worthy or by investigating the costs of cabs or the availability of public transit.
The Registrar’s Agent maintains that had the Appellant made enquiries she would have discovered that there is in fact public transit near her residence.
In addressing first the issue of due diligence, the Tribunal finds that it was not sufficient for the Appellant to have simply presumed that her boyfriend had a valid licence to drive. Each case of due diligence will depend largely on the specific circumstances of that case. In this case, there is no evidence that the Appellant made any inquiry into the status of her boyfriend’s driver’s licence, and it appears that she started letting him drive her vehicle, perhaps early in their relationship, when the circumstances would have required her to do more than just presume he had a valid licence just because he did some driving and she briefly saw his licence once or twice.
Turning to the ground of “exceptional hardship”, the detailed wording in section 10 of Regulation 631/98 provides the strict and narrow criteria that must be considered or that must not be considered in determining exceptional hardship. The first barrier is about whether there is an alternative to the impounded vehicle:
- (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 albeit, missing some of days of work, has generally been able to obtain rides. Further, the Tribunal concurs with the Registrar’s Agent that had the Appellant made some enquiries she might have found other means of getting to work by using public transportation available in the area. Thus, since alternative transportation is available, the Tribunal cannot consider any losses incurred or any other hardship.
Given these facts, the Tribunal’s enquiry into the ground of exceptional hardship must come to an end, and the Appellant’s defence 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 impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Member
Released: March 10, 2015