Licence Appeal Tribunal
File: 9688/MVIA
Case Name: 9688 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: 9688
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
Adjudicator: Geneviève Blais, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: August 6, 2015
REASONS FOR DECISION
A hearing was held on August 6, 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 Act. 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: 2009, HONDA, ACCORD (the “vehicle”)
Date of Appeal: July 17, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
In addition, some of the evidence before the Tribunal raises the possible argument that the owner had exercised due diligence under s. 50.2(3)(c). In a hearing of this nature, the Tribunal may consider any grounds for relief that arise in the evidence without the requirement for an Appellant to specifically outline the grounds in the Notice of Appeal, as long as the Respondent is provided with an adequate opportunity to respond.
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?
FACTS
Evidence for the Appellant
During the hearing, the Appellant reiterated the comments on the Notice of Appeal. She works as a nurse practitioner and the vehicle is required for her employment which is located in remote rural communities where no public transportation is available. She attends clinics and provides outreach services in homes.
The Appellant stated that she has known the suspended driver for a couple of months. She was her hairdresser and she socialized with her on a few occasions. On the day the vehicle was impounded, the Appellant and the suspended driver spent the day at a beach. At the end of the day, the Appellant felt fatigued and did not feel safe driving the vehicle. She asked the suspended driver if she had a driver’s licence and could she drive. The suspended driver told her she had a licence, but had lost her card. After a short time on the road they were stopped by the police, at which time the suspended driver panicked and admitted to the Appellant that she did not have a valid licence and had lied to her. The suspended driver submitted a written statement to the Tribunal reiterating the events of the impoundment. She has told the Appellant that she is not in a position to financially help her with the additional costs resulting from the impoundment.
With respect to exceptional hardship, the Appellant admitted that since the vehicle has been impounded, she carpooled with a colleague for the first week. However, this arrangement that did not work out as their schedules conflicted. She has since borrowed money from a family member to rent a vehicle. This has enabled her to continue working. The Appellant recently graduated and relocated residence from Western Canada to Ontario to accept a new employment three months ago. Although she earns a good salary, her relocation was costly and her current financial situation is very strained. She is on a probationary term with her employer and having a vehicle is an essential component of her employment. The cost of renting a vehicle and the impoundment fees will cause her financial hardship.
In cross-examination, the Appellant stated she was not aware of the Ministry’s telephone service to check on the validity of a driver’s licence. The Appellant trusted the suspended driver and accepted her word that she had a valid licence.
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 September 20, 2013, of Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then 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, the Appellant stated that she does not want to lose her employment and requires her vehicle.
The Agent for the Registrar stated that the Appellant failed to prove that due diligence was exercised and requested the Tribunal confirm the impoundment. With respect to exceptional hardship, the Registrar’s Agent maintains that the Appellant has an alternative to the impounded vehicle and there has been no loss of income.
The onus is on the Appellant to establish her grounds of appeal as provided in sections 50.2(3)(c) and (d) of the Act, respectively: that the owner exercised due diligence and she has suffered exceptional hardship.
The legislation requires an owner of the motor vehicle to make reasonable efforts to determine whether or not the licence of the person who is to drive the owner’s vehicle is valid. To rely on a defence of due diligence, an Appellant must demonstrate that reasonable steps were taken to ensure the validity of an individual’s driver’s licence prior to allowing that individual to drive.
In each case, a finding of due diligence will depend largely on the specific circumstances. In her evidence, the Appellant stated she trusted the suspended driver and accepted her statement that she had a licence and had lost her card. She took no further steps to validate the information and was deceived by her. The Appellant has known the suspended driver only for a few months. The circumstances required her to do more than to accept her word that she had a valid licence. The driver’s inability to produce her licence, saying it was lost, should have raised more suspicions, and it was incumbent upon the Appellant in this situation to request and examine the licence of the suspended driver before she allowed her to drive the vehicle.
The Tribunal finds that the Appellant’s assumption that the suspended driver had a valid driver’s licence does not constitute due diligence. Thus, the Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Regulation has not been met.
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) states: “In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.”Then, if there is no alternative available, the Tribunal may consider whether the impoundment will result in a threat to health or safety, or in an “immediate, significant and lasting” loss (in the nature of finances, employment or education) to any person ordinarily transported by the motor vehicle.
In this case, the Appellant’s testimony established that an alternative to the impounded vehicle does exist. She has carpooled and is now renting a vehicle to attend to her employment obligations. While the Tribunal appreciates that the cost of a rental vehicle and the cost of the impoundment fees may be difficult, the Appellant has full time employment and earns a good income. The evidence does not support the Appellant’s case on either the ground of having no alternative to the impounded vehicle, or the ground of immediate, significant and lasting impact. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
With respect to the costs of the impoundment, the Appellant may wish to note that section 55.1(27) states that:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
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: August 10, 2015