Licence Appeal Tribunal
Appeal en matière de permis
FILE: 9622/MVIA
CASE NAME: 9622 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: 9622
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Chantal Proulx, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: June 30, 2015
REASONS FOR DECISION
A hearing was held on June 30, 2015, by teleconference to consider the Appellant’s appeal according to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).
According 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 impound facility for 45 days.
BACKGROUND
The Appellant’s motor vehicle was impounded on May 31, 2015, pursuant to section 55.1 of the Act. The Appellant appealed to the Licence Appeal Tribunal (the “Tribunal”) on two grounds: due diligence and exceptional hardship.
The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: Appellant
Motor Vehicle: 2006, Chev, UPL
Date of Appeal: June 5, 2015
There were no preliminary matters in dispute between the parties.
ISSUES
The Tribunal must decide two issues:
Should the Tribunal order the Registrar to release the motor vehicle on the basis that owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle was not then under suspension when the motor vehicle was impounded?
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
The Appellant lives in a mid-size city in Ontario. She testified that on May 31, 2015, she went to a casino with a friend she had known for about five years. The friend asked the Appellant if he could have the keys to her car because he wanted to have a nap. The Appellant explained that she gave him her keys for that purpose. Shortly after giving him her keys to the car, the Appellant was informed that her friend was in trouble in the casino parking lot. When the Appellant arrived in the parking lot, she noticed a police car parked behind hers. The Appellant’s motor vehicle was impounded because her friend drove it while his driver’s licence was suspended in relation to a conviction under the Criminal Code.
In cross-examination, the Appellant explained that it was the first time her friend had asked her for the keys to her car, although she noted that she had given him rides in the past. The Appellant stated that her friend owns a car; however, he does not drive it because he does not have sufficient funds to have it fixed. In addition, the Appellant confirmed that she did not ask to see her friend’s driver’s licence because she did not expect him to drive her motor vehicle.
In cross-examination, the Appellant confirmed that her daughter lives with her and that she has a motor vehicle. However, the Appellant indicated that she has not asked her daughter to assist with transportation because she knows that her daughter does not have time. The Appellant explained that her daughter uses her car to get to and from work and to drive and pick up her own daughter from school and other activities.
The Appellant testified that her son regularly used her motor vehicle for work. She explained that as a financial planner, he needs a car to meet clients and he is required to go out of town from time to time to work from other locations. In cross-examination, the Appellant stated that her son stopped working as a financial planner in early June 2015 because he no longer had access to her motor vehicle. The Appellant’s son is currently looking for another job. The Appellant was unable to answer questions relating to her son’s employment such as: how often he was required to be out of town for work, the tenure of his employment, his efforts to find alternatives to get to work, alternative options to meet his clients, borrowing his sister’s car, public transportation or renting a car. However, the Appellant confirmed that her son recently used public transportation to go to a job interview.
The Appellant testified that she is not working. Since her motor vehicle has been impounded, she has relied on her sister to go shopping; however, she noted that her sister’s car is not always available. In addition, the Appellant has relied on public transportation.
Evidence for the Registrar
The Registrar filed written submissions with the Tribunal on June 24, 2015. These documents, which contain information relating to the impoundment of the vehicle, were admitted into the record on consent of the Appellant. The key documents are 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 of suspension and impoundment 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 a the Appellant’s friend, who had been convicted of an offence under the Criminal Code of Canada outlined in point 5 below;
A copy of the Ministry of Transportation records concerning the driver of the motor vehicle when it was impounded, indicating that his driver’s licence expired on March 6, 2015;
A copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
A 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 April 13, 2016; and
A copy of the Ministry of Transportation records indicating that another motor vehicle was registered to an individual who lived at the same address as the Appellant (the Appellant’s daughter).
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded. Subsection 55.1(3) of the Act states:
- 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 of a motor vehicle that is impounded may appeal the impoundment to the Tribunal; however, the owner may only appeal on four specific grounds which are set out in subsection 50.2(3) of the Act.
(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 appeals on the grounds set out in paragraphs 50.2(3)(c) and (d).
According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(8) of the Act, the decision of the Tribunal is final and binding.
Due diligence
“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.
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.
According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounder under section 55.1 in the past.
Section 10 of Ontario Regulation 631/98 sets out the criteria that can and cannot be considered when determining if there is exceptional hardship. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. If there is no alternative, then the Tribunal must consider if 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.
As a general rule, the Tribunal may not consider:
- financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education if the owner of the motor vehicle 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
Due Diligence
The Tribunal finds that the Appellant did not demonstrate, on a balance of probabilities, that she exercised due diligence to determine if her friend’s driver’s licence was under suspension.
The Tribunal sympathizes with the Appellant’s situation and believes her when she said that she strives to follow the laws and that she was not aware that her motor vehicle could be impounded because of someone else’s actions. While it may be true that she, and likely many others, are not familiar with this particular piece of legislation, the Tribunal is nonetheless required to apply the governing legislation.
The Tribunal must therefore decide if the Appellant 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 was not then under suspension. This means that Appellant must demonstrate a measure of prudence based on the particular circumstances of the events that led to the impoundment of her motor vehicle. By giving the keys of her motor vehicle to her friend, the Appellant should have known that there was a possibility that he would drive her car. The Appellant testified that she did not ask her friend about the status of his driver’s licence. Had she asked to see his driver’s licence, she would have noticed that it had expired. However, she would not have known about the fact that it was suspended until April 13, 2016. The only way she could have known this is if her friend had told her or if she had called the Ministry of Transportation. At the very least, due diligence in these circumstances would require the Appellant to ask her friend about the status of his driver’s licence. The fact that the Appellant had not seen her friend drive a car in the past, combined with the fact that she had given him rides and that she was aware that he did not drive his own car, should have led the Appellant to ask a few questions. The Appellant has not satisfied the Tribunal that she exercised due diligence in this situation. Therefore, the appeal fails on this ground.
Exceptional hardship
According to section 10 of Ontario Regulation 631/98, when deciding if exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal must first consider if no alternative exists for the impounded motor vehicle. The Appellant has the burden of proving this on the balance of probabilities.
The Tribunal finds that the Appellant has not demonstrated, on the balance of probabilities, that there is no alternative for the impounded motor vehicle. The Appellant lives in a city of about a quarter million residents where public transportation is available. She testified that both she and her son have used public transportation since her motor vehicle was impounded. Secondly, on occasion, the Appellant has been able to access her sister’s motor vehicle. In addition, the Appellant’s daughter lives at the same address and she has her own motor vehicle. The Appellant testified that she did not ask her daughter for assistance regarding transportation because she knows her daughter is busy. The Appellant has not satisfied the Tribunal that no alternative exists for the impounded motor vehicle. Therefore, the appeal also fails on this ground.
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
Chantal Proulx, Vice-Chair
Released: July 16, 2015