Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-06-08
FILE: 9559/MVIA
CASE NAME: 9559 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: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: June 2, 2015
REASONS FOR DECISION
A hearing was held on June 2, 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 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: The Appellant
Motor Vehicle: 1999 INFI, QX4 (the “vehicle”)
Date of Appeal: May 8, 2015
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 set aside the Registrar’s order to impound the 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 order was made was not then under suspension?
Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship?
FACTS
Evidence for the Appellant
The Appellant testified that he lent his vehicle to a friend and former neighbour whom he has known for a number of years so the friend could run an errand. Before loaning the vehicle, he asked to see the friend’s driver’s licence and was shown a photocopy of a driver’s licence which he thought “seemed to be okay”. He had no idea that his friend’s driver’s licence was in fact suspended. The friend told him that he would not have shown him the document if the driver’s licence was out of date. Asked if he did not think it was unusual that he was shown a photocopy, the Appellant then stated that he “wasn’t thinking too clearly”.
A week before this hearing, the friend told him that his licence was not suspended for an infraction of the Criminal Code. The Appellant stated that his friend would not lie to him and asked the Tribunal if this evidence would have any impact on the outcome of this proceeding.
The Appellant is in receipt of a disability pension. He normally uses his vehicle to drive to medical appointments, for errands, and to take his adult son, with whom he lives and who does not possess a driver’s licence, to and from his place of employment. He stated that he himself has not used the bus and, given his small monthly pension, cannot afford to rent a vehicle although he has not made any inquiries as to what the cost would be. Since the impoundment, his son has taken the bus to work. The Appellant has not investigated the availability of assistance, such a bus pass, from the Ontario Disability Support Program. He does own two other plated vehicles but indicated that neither of them are roadworthy and he cannot afford to repair them. The Appellant has had some assistance from friends who have driven him when they are available.
The Appellant has approximately one medical appointment per month. He has missed one appointment which he has been able to reschedule.
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 Applicant 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 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 under the Criminal Code of Canada of failing or refusing to provide a breath or blood sample pursuant to which the driver’s licence of the driver has been suspended for life on December 23, 2008.
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).
Should the Tribunal set aside the Registrar’s order to impound the 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 order was made 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 giving 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.
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.
- 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
The first issue to be considered is whether the Appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was impounded was not then under suspension. Section 50.2(3)(c) of the Act requires the owner of the vehicle to exercise due diligence. The onus of proof is on the Appellant to establish that due diligence was performed.
Due diligence requires that an owner exercise care and attention. In this case, the Appellant did ask to see the driver’s licence of the suspended driver. He was shown a photocopy of a licence and was told that he would not have been shown this if the licence was out of date. The Appellant accepted this, testifying that it “seemed okay”. Asked by the Registrar’s representative why he did not question the fact it was a photocopy, the Appellant stated, that he “wasn’t thinking too clearly”.
While the Tribunal recognizes that the Appellant did make some attempt to determine that the suspended driver had a licence, in this case, that attempt did not go far enough. The Act requires a driver of a motor vehicle to carry his or her licence at all times when he or she is in charge of a motor vehicle. The fact that his friend only produced a photocopy should have raised questions and resulted in further effort by the Appellant to determine why his friend did not have an actual driver’s licence with him. As noted above, due diligence requires care and attention. Unfortunately, the Appellant accepted his friend’s statement that he would not have shown him the copy if his licence was out of date as proof of its validity. In fact, the Registrar’s evidence indicates that the friend’s licence was suspended for life in December, 2008. Under these circumstances, the Tribunal finds that the Appellant did not make reasonable efforts to determine that his friend had a valid licence and therefore finds that he did not exercise due diligence in accordance with section 50.2(3)(c) of the Act.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle. Section 10(4) of the regulation requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
Bus service is available in the municipality in which the Appellant lives and he presented no evidence to indicate that he was unable to use this service. The Appellant’s son, the other person normally transported in the impounded vehicle, has used the bus to reach his workplace since the impoundment. In addition to the impounded vehicle, the Appellant has two other plated vehicles. However, he testified that neither is in roadworthy condition and, living on a disability pension, he does not have sufficient funds to have them repaired. He also testified that he does not have sufficient funds to rent a vehicle although he has made no inquiries to determine what the cost would be. He also has not made any inquiries with the Ontario Disability Support Program with respect to the availability of any assistance with transportation during the impoundment period. He has, however, received some assistance with transportation from friends when they have been available to provide it.
Finally, while the Appellant testified he had missed a missed medical appointment, he was able to reschedule it and there was no evidence led to suggest that the loss of the vehicle represents a threat to the health and safety of anyone in the household.
The Tribunal acknowledges that the Appellant’s disability pension income may not be sufficient to allow him to repair his other vehicles or to enable him to rent a vehicle during the impoundment period. However, while using the bus or relying on help from friends may be inconvenient for the Appellant and his son, these are options to the use of the impounded vehicle. The evidence therefore indicates that the Appellant does have alternatives available to the use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
The Tribunal notes that the Appellant stated that, a week before this hearing, the suspended driver advised him that his licence was not suspended for a violation of the Criminal Code. The Appellant questioned whether or not this information could impact the outcome of this hearing. The Appellant provided no documentary evidence to support his friend’s statement. The certified copies of records provided by the Registrar indicate that the Appellant’s friend was convicted under the Criminal Code pursuant to which his driver’s licence has been suspended for life. In the absence of any supporting documentation from either the suspended driver or the Appellant, the Tribunal cannot give any credence to the suspended driver’s statement and therefore cannot consider subsection 50.2(3)(b) of the Act, that the licence of the driver at the time of the impoundment was not under suspension, as grounds for this appeal.
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
Mary Ann Spencer, Member
RELEASED: June 8, 2015