Licence Appeal Tribunal
Appeal en matière de permis
FILE: 10555/MVIA
CASE NAME: 10555 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.
10555 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member Presiding Marisa Victor, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 16, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on December 16, 2016 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 CONFIRMS THE IMPOUNDMENT. 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: 2002 FORD DRW (the “vehicle”)
Date of Appeal: November 30, 2016
In his Notice of Appeal (Exhibit #2), the owner appealed on the basis that the driver's licence was not under suspension, that the vehicle owner exercised due diligence (i.e. made 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)(b) (c) and (d) of the Act. However, as a preliminary matter, the Appellant advised the Tribunal that after reviewing the documents submitted by the Registrar, he accepted that the driver’s licence was in fact suspended and therefore was not appealing on that ground.
ISSUES
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's licence was not suspended?
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
In this case, the suspended driver is the Appellant’s son. The Appellant explained that his son is an alcoholic who developed a drinking problem while he was at university, was unsuccessful at school, and subsequently was never able to find what the Appellant described as ‘reasonable’ work.
The Appellant is retired. In 2010, he established a spray foam business in a suburb of a major municipality with two of his sons. The impounded vehicle is used by the business. The Appellant hoped that the suspended driver, whom he described as very personable, would take over the business one day. Initially, he was drinking and proved to be unreliable. However, more recently, the Appellant believed he was recovering and, approximately 18 months ago, the son began to operate the business on his own.
In September 2016, the Appellant and his wife moved from a suburb of the major municipality to a small community located a significant distance away. The Appellant, who testified that he and his wife had been supportive of their son, speculated that this move might have been the trigger for the incident which led to the impoundment.
The Appellant testified that he believed his son had a valid driver’s licence. He was aware that his son received a 90-day administrative driver’s licence suspension (ADLS) in 2013. However, his son was contesting this and had numerous court appearances in 2015. The Appellant’s son told the Appellant that he was not convicted. Consequently, the Appellant was shocked when he read the driver’s record submitted by the Registrar. The Appellant had also seen his son drive.
In June 2016, the Appellant renewed the insurance on the impounded vehicle. The suspended driver is included in that insurance. The Appellant believed that the insurance company would notify him if his son did not have a valid licence. On a previous occasion, he had been informed by the insurance company that another driver did not have a valid licence. Furthermore, the Appellant had seen his son’s driver’s licence and he questioned why his son would still have this when his licence was suspended. Asked when he had last seen the licence, the Appellant could not remember.
The Appellant testified that he believed that he had exercised reasonable due diligence. While he knew his son was an alcoholic, he was hopeful he was recovering, although he noted that his son was very good at disguising his drinking. He questioned whether or not due diligence means having to confirm that your son is not lying to you.
The Appellant owns a motor home and two other vehicles, all of which are operational. He noted that the cost of the impoundment would be significant but that, having recently sold his home, he could afford this. The Appellant indicated that he intends to sell the business assets since his son cannot run the business.
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended to March 8, 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:
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 appeal is being considered 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 the vehicle was detained in order to be impounded was not then under suspension?
“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.
In order to establish due diligence within the meaning of s. 50.2(3)(c) of the Act, the Appellant must show that he took all reasonable steps to determine that the driver’s licence in question was not under suspension at the time of the impoundment.
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” 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.
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
Due Diligence
The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles. “Due diligence” is not defined in the legislation. Section 50.2(3)(c) requires an owner to exercise due diligence in “attempting to determine” that a licence is not under suspension. The degree to which determination efforts are considered to be reasonable will vary with circumstances.
In this case, the Appellant testified that while he was aware that his son, the suspended driver, is an alcoholic, he believed his son when he was told he had not been convicted of impaired driving. He had seen his son drive and, although he could not recall exactly when, he had seen his son’s driver’s licence. And, in June 2016, he was able to successfully renew the insurance on the impounded vehicle, with his son listed as a driver.
In his Notice of Appeal, the Appellant wrote:
J. repeatedly told me when asked that he had a valid driver’s licence and could legally drive my work truck used for my spray foam insulation business…J. is a listed driver on the insurance policy for the truck. It is my understanding that the insurer would notify me of any suspension. The one thing more that I could have done was to ask J. to produce his driver’s license for my inspection. This would imply a lack of the trust that should exist between father and son and goes beyond reasonable due diligence.
The Appellant was aware that his son had a longstanding problem with alcohol and that he had a number of court appearances in 2015 to contest a 2013 impaired driving charge. While the Appellant did ask his son about the status of his driver’s licence, he trusted his son when he was told the son was not convicted.
The evidence is that the Appellant’s son has a history of licence suspensions. The documentation submitted by the Registrar indicates there have been two ADLS suspensions as well as suspensions for unpaid fines. And, in this case, the Appellant divested control of the impounded vehicle to his son for use in a business. In these circumstances, due diligence requires more than just relying on what the suspended driver says. While the Tribunal appreciates that the Appellant was trying to be supportive of what he believed to be his son’s recovery and that he perhaps did not wish to appear to be untrusting, the evidence is that he relied on what his son told him without further investigation. In his closing statement, the Appellant remarked that, in hindsight, he should have checked the status of his son’s licence with the Ministry. Given the Appellant’s knowledge of his son’s long history of alcoholism and of a previous impaired driving charge, this type of check would have been prudent. At a minimum, the Appellant should have asked to see his son’s driver’s licence. In this regard, the Tribunal notes that while the Appellant testified that he had seen it, he could not recall when. Further, the Notice of Appeal indicates that the Appellant had not asked his son to produce the licence.
In this case, the Appellant also relies on the fact the insurance company did not raise any issues when the policy was renewed in June 2016 as proof of the validity of his son’s licence. However, due diligence requires active inquiry by the owner of the vehicle “in attempting to determine” the status of the licence. Therefore, the Appellant cannot rely on the fact that no flags were raised by the insurance company as evidence that he conducted due diligence.
For the above reasons, the Tribunal finds that the Appellant did not exercise due diligence as set out in section 50.2(3)(c) of the Act.
Exceptional Hardship
With respect to the issue of exceptional hardship, section 10 of Regulation 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 cannot consider the Appellant’s financial loss unless the Appellant has proven that he has no alternative to the impounded motor vehicle, and also that his loss is “immediate, significant and lasting.”
In this case, the evidence is that the impounded vehicle is used in a business that the Appellant owns but that was being operated by the suspended driver until the vehicle was impounded. However, the Appellant indicated his intent to sell the business assets since the suspended driver can no longer operate the vehicle. Both the Appellant and his wife have other vehicles for their personal use. The evidence indicates that the Appellant has an alternative available to the use of the impounded vehicle and therefore does not establish exceptional hardship as set out in subsection 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 confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Presiding Member
Marisa Victor, Member
RELEASED: December 20, 2016