Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9816/MVIA
CASE NAME: 9816 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: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: October 15, 2015
REASONS FOR DECISION
A hearing was held on October 15, 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 on the grounds that the driver of the vehicle was driving with a suspended licence. 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: 2013, HONDA, Civic (the “vehicle”)
Date of Appeal: September 29, 2015
ISSUES
The owner of the vehicle appeals on two grounds: first, that she exercised due diligence under subsection 50.2(3)(c) of the Act before loaning her vehicle to the person who was driving it at the time of the impoundment, and second, that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
The two issues to be decided are as follows.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the vehicle owner exercised due diligence to determine that the driver of the vehicle had a valid driver’s licence or on the basis that the impoundment will result in exceptional hardship; and
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 works at two different jobs. She met the suspended driver of her vehicle through her work and had the opportunity to look at the driver’s licence about a year ago. She also recalls looking at the licence in July of this year when the driver asked to borrow the vehicle. The Appellant does not recall checking to see the expiry date of the licence.
The suspended driver was going through a hard time and the Appellant was trying to help her out by loaning her the vehicle from time to time. Most recently, she borrowed the vehicle for a period of about a week or two. The Appellant rented a vehicle to use for herself and the suspended driver paid for the rental.
On September 15, 2015, the suspended driver was stopped by the police and the vehicle was impounded for a period of 45 days when it was learned that her driver’s licence was suspended. At the time of the impoundment, the she refused to produce a driver’s licence.
The Appellant stated she was not aware of the Ministry’s telephone service to check the validity of a driver’s licence. She was simply trying to help and would never had loaned her vehicle to the driver had she had any idea that the driver’s licence was suspended.
The Appellant owns two vehicles. The one which was impounded is for her personal use. The second vehicle is for the use of her parents, who live with her. Her father is unwell and her mother uses the vehicle to transport him to medical appointments. They live in a remote small town and a vehicle is considered necessary.
Since the impoundment, the Appellant has missed five days of work. However, her employment is not in jeopardy and she has been resourceful in finding ways to get to work. Sometimes, her mother will drive her in the alternate vehicle and sometimes she rides with another relative. She has taken the GO bus on one occasion. She considered renting a vehicle but cannot afford that option.
The Appellant is in good health and she has not missed any medical appointments.
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;
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 whose driver’s licence was suspended;
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 a history of repeated driving licence suspensions. The driver’s licence had expired in 2006.
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).
Considering first the issue of due diligence, 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.
Concerning the questions of 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.
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 had no idea the suspended driver did not have a valid driver’s licence and that she needs her vehicle given the remote location of her home.
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 that her employment is not in jeopardy.
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 had viewed the driver’s licence on two occasions but did not recall if she had noticed the expiry date. This suggests that the examination was cursory. The Appellant trusted the suspended driver, took no further steps to validate the information and was deceived. The Appellant has known the suspended driver for about a year and knew that the suspended driver was, in the Appellant’s words, “going through a difficult time”. The Appellant gave her vehicle to the suspended driver on several occasions, and once for a week at a time. While the Appellant was only trying to be helpful, in all the circumstances of this case, due diligence required more than a cursory look at the driver’s licence. A reasonable scrutiny would have revealed that the licence was expired. It was incumbent on the Appellant to examine the licence of the suspended driver before the Appellant allowed her to drive the vehicle. The Appellant’s oversight in not checking the expiry date of the licence of the suspended driver falls short of due diligence. Thus, the Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Act 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 owns a second vehicle which, although primarily for the use of her parents, does mean that her mother has been able to drive her to work. She has also been able to obtain a ride to work with a relative. While she has missed some days of work, her employment is not in jeopardy. 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. Therefore, the appeal on the grounds of due diligence and exceptional hardship has failed.
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.
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
Laurie Sanford, Vice-Chair
Released: October 29, 2015