Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9675/MVIA
CASE NAME: 9675 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
-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: Julia Scorcia, Agent
Heard in Toronto: July 30, 2015
REASONS FOR DECISION
A hearing was held on July 30, 2015, at Toronto, Ontario, in person, 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").
Pursuant to section 50.2(5), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant's motor vehicle will remain detained at the impound facility for 90 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: 2006 BMW 301 (the "vehicle")
Date of Appeal: July 13, 2015
ISSUES
As set out in the Appellant's request for hearing (Exhibit #2), the owner appeals on two grounds: 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.
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
The suspended driver is the Appellant's brother. In approximately the middle of June, the suspended driver asked the Appellant if he could borrow her vehicle. She initially refused because she was aware that his licence had been suspended, her vehicle having been impounded for 45 days in March, 2015 when her brother drove it while his licence was suspended. However, her brother told her that he did have his licence back and showed it to her. She testified that she had no reason not to believe he was being truthful and therefore allowed him to borrow and drive her vehicle. Asked if she saw the date on the licence, she indicated that she could not recall any of its details.
The Appellant was not home when her brother took her spare key on July 2, 2015, the date the current impoundment began. She testified that her brother has her permission to use her vehicle when he needs it, a fact she also confirmed she had told the investigating police officer when asked if the vehicle had been stolen.
The Appellant normally uses the vehicle to drive to and from her work and to pick her mother up from her work as well as for appointments and errands. Since the impoundment, they have been using public transportation. No work or medical appointments have been missed because of impoundment of the vehicle. However, the Appellant testified that she is concerned that her mother is travelling home alone by bus at 11 p.m. when her work shift ends. The Appellant indicated that she cannot afford to rent a vehicle because she will need the money to pay impoundment fees if her appeal is not successful.
The Appellant's brother testified that he was responsible for the previous 45 day impoundment of the Appellant's vehicle. When he asked her to borrow the vehicle in June of this year and she refused, he showed her what he described as an "extra licence". He testified that she did not "properly" look at the licence, which he indicated he "waved" at her.
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 of failing to provide a breath or blood sample under the Criminal Code of Canada pursuant to which the driver's licence of the driver was then under suspension until November 25, 2015.
Copy of the Ministry of Transportation records indicating that the suspended driver's licence had been returned to the Ministry.
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.
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. 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. The Appellant submitted that she did exercise due diligence because, approximately two weeks before the current impoundment, she had seen her brother's driver's licence. The Appellant testified that she does not restrict her brother's use of the vehicle, indicating she had no problem with him using it if it was available and he needed it. However, because the vehicle had been impounded earlier in the year when her brother drove it without a valid licence, she was aware that his licence had been suspended. She therefore initially refused to allow him to take her vehicle, agreeing only after he told her his licence was no longer suspended and showed her a driver's licence. The Appellant testified that she could not recall any details that she may have seen on that licence. The suspended driver, however, testified that what he showed the Appellant was what he described as an "extra" licence and stated that she did not look at it "properly", that he "waved" it in front of her.
The Appellant testified that she had no reason to disbelieve her brother. However, given the Appellant's vehicle had already been impounded once, the Tribunal finds that her efforts to determine the status of her brother's licence were insufficient. Under these circumstances, reasonable efforts would include at least examining the licence. Had the Appellant done so, she would have determined that it was not valid, the Registrar's evidence showing that the driver had in fact returned his licence to the Ministry. In some situations, especially where there has been some history of impoundments or driving suspensions, itis possible that even seeing a valid driver's licence may not be enough, and further inquiries may be needed to show due diligence. The Tribunal therefore finds that the Appellant did not make reasonable efforts to confirm the validity of her brother's licence and 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 Regulation 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.
In this case, the Appellant and her mother live in a large municipality, and they have been able to use public transportation to replace the impounded vehicle. Neither work days nor medical appointments have been missed because of the lack of a vehicle. The evidence indicates that the Appellant has an alternative available to the use of the impounded vehicle and therefore she has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act. The Tribunal also notes that while the Appellant testified that she has chosen not to rent a vehicle because she may need the money to pay impoundment fees, the Tribunal cannot consider these impoundment fees in determining if exceptional hardship will result from the impoundment.
Finally, the Tribunal notes that the ground of "stolen" set out in subsection 50.2(3)(a) of the Act does not apply in this case. While the Appellant was not home at the time her brother drove her vehicle using a spare key, she testified that she does not restrict him from borrowing the vehicle when he needs it. There was no evidence to indicate either that specific permission to use the vehicle was required or that the vehicle was taken without the owner's permission.
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 90 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, presiding Member
RELEASED: August 6, 2015