Licence Appeal Tribunal
FILE: 9300/MVIA
CASE NAME: 9300 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: Antoine Aouad, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: January 8, 2015
REASONS FOR DECISION
A hearing was held on January 8, 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 “Act”).
After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal confirmed the impoundment in an Order dated January 9, 2015, with reasons to follow.
These are the reasons for the Tribunal’s Order.
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: 2008 HYUN SON (the “vehicle”)
Date of Appeal: December 12, 2014
By way of preliminary matters, the Registrar’s Agent opposed the Notice of Motion to extend the appeal period beyond the allotted 15-days.
The Appellant explained that she did appeal within the prescribed time, but did not know how to make a payment. Once she obtained the information, she promptly completed the appeal process.
The motion was granted.
As the Appellant argued during the hearing that she had actually seen the suspended driver’s licence, the Tribunal considered the issue of due diligence. Given the statement made by the Appellant that she had actually seen the suspended driver’s licence, the Tribunal requested that the Registrar’s Agent provide documentation, by 4:00 p.m. on January 8, 2015, to confirm whether the suspended driver’s licence of the suspended driver had been confiscated. Mr. Kapur forwarded a document to the Tribunal on January 8th, specifically, the Notice to the Registrar regarding the suspended driver’s 90 day ADLS suspension dated June 29, 2014 (the “ADLS suspension notice”).
The decision of the Tribunal is based on all of the evidence received.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), 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 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
A summary of the Appellant’s evidence follows.
The Appellant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 2. The Notice of Appeal states that the loss of the impounded vehicle will cause exceptional hardship as she is the single mother of a 3-year old son, and that she lives in Oshawa and works in Ajax. Further, according to the Appellant the use of public transportation is inconvenient.
During the hearing, the Appellant raised the issue of due diligence affirming that the suspended driver showed her a driver’s licence, which she believed to be valid.
With respect to exceptional hardship, the Appellant testified that she will not be able to pay for the cost of the impoundment.
In cross-examination, the Appellant confirmed that she has found alternate means of getting to work, by taking public transportation. This inconvenience is causing her to be late for work and miss time with her son.
The Appellant attested that her son is looked after by his grandmother in the morning, and that his grandfather takes him to daycare in the afternoon with his own vehicle.
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 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 Blood/Alcohol Content in Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 22, 2015.
The Registrar called no other evidence.
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.
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
In closing, the Appellant stressed that she needs her vehicle and would like to have it back, as well as the impoundment fees waived.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension.
With regards to exceptional hardship, the Registrar’s Agent noted that the Appellant has alternative transportation available to her. There is public transportation available where the Appellant currently resides, therefore, according to the legislation, the Appellant is precluded from appealing under exceptional hardship.
Further there are emergency services available in the area.
The Registrar’s Agent quoted section 27 of the regulation, which according to the Registrar’s Agent does not allow the Tribunal to consider the impoundment fees as part of the hardship.
In rebuttal, the Appellant argued that she had actually seen the suspended driver’s licence but had not examined it closely.
The Registrar’s Agent maintained that the suspended driver’s licence had been confiscated when he was stopped and received an ADLS suspension on June 29, 2014.
The onus is on the Appellant to establish her grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal agrees with the Registrar’s Agent that the evidence shows that the person having care and control of the vehicle at the time of impoundment, the suspended driver, did not in fact have a valid driver’s licence.
Further, the criteria of section 50.2(3)(c) of the Act are not met in that, the ADLS suspension notice indicates on it that the driver’s licence was seized in June 2014. Therefore, given that the suspended driver’s licence was confiscated at that time, the Tribunal is not satisfied that the licence the Appellant claims to have seen actually belonged to the suspended driver. Further, by her own admission, the Appellant did not closely observe the details in the licence shown to her. She could not, for example, verify the expiry date on the licence. As such, it cannot be argued that the Appellant exercised due diligence.
With respect to exceptional hardship, Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. The evidence is clear that the Appellant has access to public transportation, and her father has been available to assist by taking her son to daycare transportation for her son. As alternative transportation is available to the Appellant, the Tribunal’s enquiry must come to an end and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.
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
Antoine Aouad, M.D., Presiding Member
RELEASED: January 16, 2015