9864 v. Registrar of Motor Vehicles, 2015 CanLII 89155

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-11-30

FILE:

9864/MVIA

CASE NAME:

9864 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:

Douglas R. Wallace, Vice-Chair

APPEARANCES:

For the Appellant:

Kris Burke, Paralegal

For the Respondent:

Steve Grootenboer, Agent

Heard by teleconference:

November 19, 2015

REASONS FOR DECISION

A hearing was held on November 19, 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”).

Pursuant to section 50.2 (5), the Tribunal ORDERS THE REGISTRAR TO RELEASE THE VEHICLE

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: 2003 Dodge 3500 (the “vehicle”)

Date of Appeal: November 2, 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, 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 licence of the driver of the motor vehicle at the time the vehicle was 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

A summary of the Appellant’s evidence follows.

The Appellant owns and operates a farm business which involves the purchase, raising and sale of a substantial number of cattle. A number of motor vehicles, including the impounded vehicle, are used in the business and are normally left in the farmyard with the keys in the ignition so that they may be moved, as required, to accommodate the movement of cattle and supplies.

The Appellant is assisted in his business by an employee hand who was driving the vehicle at the time it was impounded. The Appellant had seen this employee’s driver’s licence when he hired the employee in 2014 and again a couple of weeks before the day he was stopped for driving the vehicle. He knew from seeing the licence that it had not expired, but took no steps to ensure that it had not been suspended.

The employee had never taken the vehicle off the farm previously and the Appellant testified that it was not part of his job to do so. The Appellant would not have allowed the employee to take the vehicle on the highway on this occasion if he had known of his intentions.

The Appellant testified that the vehicle was a one-ton truck used to haul cattle to and from pasture and to and from the livestock sales market. He has two other vehicles registered in his name, including a 2006 half-ton truck but neither of these vehicles is equipped to haul trailers of the size necessary to transport cattle and could only be so equipped at a cost of at least $6,000 to $8,000 if at all. The Appellant indicated that he has lost $75,000 in the three weeks since the impoundment of his vehicle – a loss which cannot be recouped even after the return of his vehicle. This loss has virtually wiped out his savings.

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:

1. 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.

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Failure to stop for Police Officer and Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 11, 2017.

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:

1. 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.

2. 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.

3. 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.

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).

With respect to the issue of due diligence, the Shorter Oxford Dictionary, 3^rd^ ed. provides the following definitions:

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.

With regard to the issue of whether theTribunal should order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship the Tribunal notes that the Shorter Oxford English Dictionary, 3^rd^ ed. defines “exceptional” and “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.

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 definition of “due diligence” requires a determination whether the Appellant’s conduct can be considered that of a reasonable and prudent person in all the circumstances.

The Respondent submits that two of the circumstances in this case, leaving the keys in the vehicle’s ignition and failing to make enquiries as to the possibility that the employee’s driver’s licence has not been suspended indicate a lack of due diligence. The Appellant submits that given the additional fact that it was not part of this employee’s job to drive this vehicle off the farm and that the employee had never done so previously, the requirement of due diligence was met by his action in looking at the employee’s driver’s licence to ensure that it was current.

Each case must be decided on its own unique facts. The Appellant checked the employee’s driver’s licence when he hired him in 2014. There appeared to be no indicators of a licence suspension at that time or in the time leading up to the impoundment. On a consideration of all the evidence, including the fact that the Appellant had no reason to doubt the information that appeared on the face of the employee’s driver’s licence, the Tribunal accepts the Appellant’s submission that his actions satisfied the requirement for due diligence.

The Tribunal does not need to consider ‘exceptional hardship’ as a ground of appeal since it is granting the appeal on the basis of due diligence. For completeness, the Tribunal notes that this ground of appeal would fail. With respect to the defence of exceptional hardship, the Respondent submits that this defence is not available to the Appellant in light of the admitted fact that an alternative vehicle was available in the form of a half-ton truck. The Appellant submits that this vehicle could not meet the full requirements of hauling the number of cattle required to be moved without major modifications to the vehicle.

To prove his case on the basis of exceptional hardship, the Appellant must first show that no alternative to the impounded vehicle is available to him. The Tribunal accepts the Respondent’s submission and finds that the Appellant has an alternative vehicle that can provide at least a substantial part of the transportation function of the impounded vehicle, even without a significant expenditure of dollars. Further, while the Appellant testified that he has suffered a very large financial loss, the Tribunal was not provided with any documentary evidence to support that assertion. In the circumstances, the Appellant has failed to show exceptional hardship as set out in section 50.2(3)(d) of the Act.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.

LICENCE APPEAL TRIBUNAL

Douglas R. Wallace, Vice-Chair

Released: November 30, 2015