9328 v. Registrar of Motor Vehicles, 2015 CanLII 9430

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-02-23

9328/MVIA

9328 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

Dr. Antoine A. Aouad, Member

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis and Julia Scorcia, Agents

Heard by teleconference:

February 3, 2015

REASONS FOR DECISION AND ORDER

A hearing was held on February 3, 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”). The Tribunal has reviewed the evidence and submissions and makes the following Order.

Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impoundment 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: 2013 HYUN SGL (the “vehicle”)

Date of Appeal: January 14, 2015

All documents were entered into evidence as exhibits with the consent of both parties.

ISSUES

As set out in the Appellant’s Notice of Appeal (Exhibit #2), the Appellant appeals on the basis that she exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended, and also 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 of Motor Vehicles (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 Notice of Appeal filed with the Tribunal was entered as Exhibit #2. In the Notice of Appeal, the Appellant states that she left the vehicle with the suspended driver not knowing that he was suspended. The driver does not live with the Appellant but they maintain contact with each other because he is the father of the Appellant’s child. The Appellant left her vehicle with the driver when she went on vacation.

The Appellant testified that she asked the suspended driver if he had a valid driver’s licence and he told her that he did, but she did not ask to see it. The Appellant said that even the suspended driver was under the belief that his suspension was only for one year as he paid his fee, and was never advised that the Ministry of Transportation had added two more years for his suspension. The Appellant testified that she had seen a letter from the Court that indicated this one-year suspension. On cross-examination by the Respondent’s Agent, the Appellant denied that this letter included a part at the bottom that stated that the suspension may be different or longer than the period stated in the Court’s Prohibition Order. The Tribunal provided the Appellant a chance to get this document to the Tribunal later that same day as the hearing. The Appellant later contacted the Tribunal and requested more time. The next day, the Appellant faxed a Prohibition Order from the Ontario Court of Justice dated February 21, 2012. This Order stated at the bottom that the period of suspension of the driver’s licence may be different from the period stated in the Court’s Order, which in this case was one year.

On the exceptional hardship issue, the Appellant stated that she has no money to cover the impoundment expenses and neither does the suspended driver. She lives pay cheque to pay cheque.

The Appellant lives in a rural area and she submitted that the loss of the vehicle will cause exceptional hardship. She has been getting around with rides from her neighbours and co-workers, but has not considered renting a vehicle, as the expense would be more than she could afford. The Appellant confirmed that her father has lent his vehicle to her on the weekends so that she can get her shopping done. In response to questions from the Tribunal, the Appellant confirmed that neither the Appellant nor her daughter have missed any doctor’s appointments. There are 911 services available in her area. Her daughter has missed some days of school due to illness. Despite having some access to a vehicle or rides, the Appellant feels that her health is not too good and that she needs to see a physician due to the stress in her life.

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:

A 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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until February 21, 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.

O. Reg. 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 subsections 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.

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 submissions, the Appellant asked for leniency and asked that the Tribunal not consider the information about the suspended driver as it is not relevant to her situation. According to the Appellant, she cannot afford the costs of the impoundment.

In a summary statement, the Registrar’s Agent asked the Tribunal to confirm the decision of the Registrar. The Registrar’s Agent maintains that there is no doubt that the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.

With respect to due diligence, the Registrar’s Agent maintains that had the Appellant asked to see a driver’s licence, she would have known that the suspended driver was not in possession of a valid driver’s licence.

On the issue of due diligence, the Tribunal finds that there are several reasons why the Appellant did not exercise due diligence when she presumed that the driver was no longer under a licence suspension. In some cases, it may be enough for a vehicle owner to simply ask a driver if they have a valid driver’s licence; in other cases, due diligence may require the further step of seeing that licence; and in other cases, the owner may need to do even further investigation.

The circumstances of this case involved the driver of the car being someone who the owner already knew was under a licence suspension, and this certainly raises expectations regarding what the owner needed to do to be satisfied that the driver had a valid driver’s licence. The Appellant claimed that she had a letter that showed only a one-year suspension, but she was unable to produce that letter; she had to obtain a copy from the Court, and this document noted that the period of licence suspension could be longer than the period in the Court’s Order. This is also a situation where the driver did not live in the owner’s household and did not regularly have use of the car.

In these circumstances, simply asking someone if they have a valid driver’s licence does not suffice. It was incumbent upon the Appellant to at least examine the driver’s licence of the person to whom she was giving care and control of her vehicle, and to be more careful in confirming whether the period of licence suspension was one year or longer. The Tribunal finds that the ground of due diligence under section 50.2(3)(c) of the Act has not been met.

Turning to the ground of exceptional hardship, section 10 of O. Reg. 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. Given the evidence, there is no doubt that the Appellant has been able to carry on her activities albeit by borrowing vehicles and obtaining rides. Thus, since alternative transportation is available, the Tribunal cannot consider any financial losses incurred.

Given the evidence, 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.

With respect to whether the suspended driver’s licence was in fact suspended, the Tribunal reviewed the Prohibition Order submitted and finds that it is quite clear that any licence suspension ordered by the Courts may be further extended according to the powers given to the Ministry of Transportation under the Act. Thus, the Tribunal finds that the appeal under section 50.2(3)(b) of the Act also does not apply.

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 impoundment facility for 45 days.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Member

Released: February 23, 2015