Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9738/MVIA
CASE NAME: 9738 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: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: September 9, 2015
REASONS FOR DECISION
A hearing was held on September 9, 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: 2004, TOYOTA, UCS (the “vehicle”)
Date of Appeal: August 19, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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 order the Registrar to release the motor vehicle on the basis that the ground of due diligence is applicable on the facts of this case?
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
During the hearing, the Appellant reiterated the comments on the Notice of Appeal. The Appellant has been married to the suspended driver for 24 years and they have an 11 year old son. Her husband receives a disability pension and she was employed until June, 2015 when she was laid off. She now receives employment insurance benefits. She stated she is anxious to find full time work as her benefits are not enough for her to live on. Her husband is currently incarcerated as a result of the charges from the incident involving the impoundment of the vehicle.
The police report submitted in evidence by the Registrar’s Agent indicates that on August 8, 2015, at approximately 8:51 p.m. in the evening, the suspended driver was witnessed driving the vehicle on the residential street near his home. He had nearly struck a neighbour standing near her car as she was attempting to buckle her children in their car seats. Three neighbours witnessed the suspended driver exit the vehicle at his house, stumbling while holding a Liquor Board of Ontario (LCBO) bag in his hand. The police were called and prior to their arrival two of the neighbours went over to the suspended driver’s residence where a verbal argument ensued between the parties.
Based on the witnesses’ information, the police spoke to the suspended driver at the front door of his residence. From a distance of ten feet away, an odour of alcohol was detected and his eyes were bloodshot and glassy. He became irate with the police when questioned about the incident. The vehicle was impounded and the police charged the suspended driver with multiple offences. He was arrested, taken into custody where two breathalyser tests taken an hour later indicated readings in excess of the legal limits.
The Appellant testified that on the evening the vehicle was impounded, she was at home with the suspended driver and their son. Shortly after supper, around 7:30 p.m., she decided to take a nap. Although she stated she had the car keys with her and put them under her pillow, in her Notice of Appeal, she wrote” I had the car keys in my pocket”. Around 8:45 p.m. she was woken by neighbours who were shouting at the front door of her home, accusing her husband of drinking and driving. She stated the neighbours are “out to get him”. They have no understanding that he suffers from an alcoholic sickness. Although she was adamant that her husband had not left the house with the vehicle, in her Notice of Appeal she wrote “I did not see my husband leave the house”. She stated her husband had no money to purchase any alcohol and there is no alcohol in the home.
With respect to due diligence, the Appellant indicated that her husband was not driving the vehicle that evening. She insisted that the car was parked at all times in her driveway. She has one set of keys for the vehicle and stated they are with her all the time. She also denies that her husband was drinking. She is fully aware of his extensive driving record dating back to1987, and two lifetime driving suspensions.
The Appellant and her husband own a home in an urban area with good access to public transportation and resources. Recently, they decided to sell their home due to financial difficulties. They are in arrears of three months of mortgage payments. Although the home has not been sold, the Appellant, on August 15, 2015, moved to an apartment in a smaller community located about 25 minutes from the city, where public transportation is not available. She indicated her son has learning difficulties and he was recommended for a new school in the area where he is able to access the school bus. She is now living alone with her son and her husband will not be living with her. She is unaware as to when he will be released from his incarceration as he is scheduled to attend a residential treatment program.
With respect to exceptional hardship, the Appellant stated that since the vehicle has been impounded, she used a taxi on one occasion to travel to the city to accompany her mother to a medical appointment. Otherwise, she has not gone anywhere. When she moved to the apartment over three weeks ago, she had sufficient groceries and food to manage for some time. A friend helped her move and since the school year began a few days ago, her son is picked up by the school bus. She stated that as no public transportation is available, she requires the vehicle to attend medical appointments for her son, her mother and herself. She also is required to attend employment workshops to search for work. She is unable to rent a vehicle as she has no credit card. She cannot afford to use a taxi regularly as the cost is prohibitive. She concluded in stating “I need my car so that I can raise my son properly.”
In cross-examination, the Appellant acknowledged that the employment workshops she referred to in her evidence are not obligatory. She has kept in contact with her counsellor and her employment insurance benefits are not impacted by her inability to attend the workshops. She admitted that her mother has used a senior handicap bus to attend appointments. With regard to the medical appointments for her son, she acknowledged that she cancelled some appointments and will reschedule them later on. None of the appointments were critical or urgent. She further admitted that she has elected not to attend some meetings and medical appointments for herself as she was not in a “good frame of mind”. She would like to attend a job fair in a few days and has asked a friend to drive her.
The Appellant was asked if residing in the home she owns in the city would facilitate transportation alternatives available to her. She stated that her son is her priority. She was not willing to delay his start at a new school by a few weeks and decided to relocate outside of the city. With respect to any discussion with her husband concerning the events leading to the impoundment, she stated she did not have a chance to talk to him during the evening in question, even though she was with him for a few hours before he was taken into custody. Despite the police breathalyser readings, she does not know how he could have been drinking that evening and how he could have taken the vehicle. She is adamant that he was sober until the time she took a nap. She has visited him once since he has been in custody and she maintains he is innocent. She concluded in stating “we have had bad luck for four years and no one understands our situation”.
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 July 10, 2013, of Impaired Driving and on August 19, 2013 for Fail to provide a breath or blood sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was, on each conviction, 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, 3^rd^ 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, 3^rd^ 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 with the loss of her vehicle she has had to postpone many appointments for herself and her son. She requires her vehicle to get things done.
The Registrar’s Agent 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 managed with alternatives to the impounded vehicle and there has been no loss of income.
The Registrar’s Agent stated this is the fourth incident of impoundment involving the same owner and same driver in the past three years. He argued that the Appellant’s credibility is put in doubt, given her version of the events around the impoundment and the suspended driver’s history which indicates he has driven the vehicle while under suspension in the past.
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 denies that her husband, the suspended driver, was driving the impounded vehicle. She insists that at all times she had the only keys to the vehicle and the vehicle never left her residence during the evening. She further alleges that the evidence provided to the police by three witnesses is false. The Appellant’s testimony was at times inconsistent, and the Registrar’s Agent’s cross-examination did lead to doubts about her credibility.
Whether or not the Tribunal accepts the Appellant’s evidence as credible, the evidence does not, in any event, support a finding that due diligence was exercised, as defined by the legislation. The Tribunal concurs with the Registrar’s Agent that it would be quite a stretch to consider this matter under the criteria for due diligence. Due diligence, in this instance means that the owner made reasonable effort to determine that he driver of the vehicle had a valid licence. The Appellant was very aware that there was not a valid driver’s licence. In some instances, an owner may take every effort to ensure that a suspended driver does not take the vehicle by hiding keys. If in spite of that, a suspended driver takes the vehicle, there may be grounds to assert that the vehicle was stolen. But in this case, the Appellant is not asserting this and actually denies the suspended driver was even driving.
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 she has managed without a vehicle and has found alternatives to the impounded vehicle. Her son has bus transportation to school and her mother has access to public transportation and has attended the necessary appointments. The Appellant has missed some appointments, but these were not urgent and were rescheduled. The Tribunal recognizes that the alternatives are inconvenient and costly to her. The Tribunal is bound to apply the legislation as it is written and the Tribunal cannot, in these particular circumstances, consider inconvenience or financial loss to the Appellant. There was no evidence before the Tribunal that the financial benefits she receives or her son’s care have been impacted. The evidence does not support the Appellant’s case on either the ground of having no alternative to the impounded vehicle, and that every reasonable option has been considered, 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.
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: September 16, 2015