Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10057/MVIA
CASE NAME: 10057 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: Chantal Proulx, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: March 11, 2016
REASONS FOR DECISION
A hearing was held on March 11, 2016, by teleconference to consider the Appellant’s appeal according to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).
According to section 50.2 (5) of the Act, the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will be detained at the impound facility for 45 days.
BACKGROUND
The Appellant’s motor vehicle was impounded on February 21, 2016, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on two grounds: (1) she exercised due diligence in attempting to determine if the driver’s licence of the driver of the motor vehicle was under suspension, and (2) exceptional hardship.
The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: Appellant
Motor Vehicle: 2002, Dodge CRV
Date of Appeal: February 22, 2016
ISSUES
The Tribunal must decide two issues:
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 it was detained 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
The Appellant asked the Tribunal to release her motor vehicle because of her personal circumstances. She testified that she is a single mother of three children currently receiving social assistance. Although she is not working at this time, she is hoping to find employment shortly and it will be difficult for her to do so without her motor vehicle.
The Appellant lives in the center of town and two of her three children attend a school in the east end of town. She decided to keep them enrolled at the same school even though she can’t drive them to school. Her children have been going there since kindergarten and they are now in grades 2 and 3. She currently relies on others to drive her children to school, and when that is not possible, she takes public transportation with them to get them to school. The Appellant stated that she used to assist her sister by driving her to appointments, but she is no longer able to help out.
The Appellant explained that she let a friend borrow her car because he told her he would be right back with the vehicle. She believed he used a car to drive to work and to drive his children.
In cross-examination, the Appellant explained that the driver of the vehicle was a friend she met online in October 2015. On February 21, 2016, the driver was at her house with another individual. That individual left earlier and her friend stayed behind. Later in the evening, her friend asked to borrow her car and she gave him the keys. She indicated that her friend never mentioned that his licence was suspended. She assumed that he had a valid driver’s licence, but she never saw him drive a car and she did not ask him if he had a valid driver’s licence.
On the issue of exceptional hardship, the Appellant clarified that she has been receiving social assistance since July 2015. She explained that a week before her car was impounded, she left her resume with prospective employers; however, no one has called her yet. Therefore, not having her motor vehicle has not had an impact on her ability to attend an interview.
The Appellant confirmed that her children have not missed any days of school – either someone else gives them a ride to school or she takes public transportation to drop them off. Instead of a 10 to 13 minute drive to school, it takes approximately 40 minutes with public transportation. In addition, she stated that she has not missed any other appointments since her car was impounded.
Evidence for the Registrar
The Registrar filed written submissions with the Tribunal on March 7, 2016. These documents, which contain information relating to the impoundment of the vehicle, were admitted into the record on consent of the Appellant. The documents are as follows:
A copy of the Notice to Registrar indicating that the Appellant’s motor vehicle was impounded on February 21, 2016;
A copy of the Notice of Impoundment for a period of 45 days effective February 21, 2016;
A copy of the Ministry of Transportation records regarding the driver of the motor vehicle when it was impounded, indicating that his driver’s licence has been suspended several times since 2000 and in 2009 his licence was suspended for life; and
A copy of the vehicle record as of the date of impoundment.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded. Subsection 55.1(3) of the Act states:
- 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 of a motor vehicle that is impounded may appeal the impoundment to the Tribunal; however, the owner may only appeal on four specific grounds set out in subsection 50.2(3) of the Act.
(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 appeals on the grounds set out in paragraphs 50.2(3)(c) and (d).
According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(8) of the Act, the decision of the Tribunal is final and binding.
1. Due diligence
The Shorter Oxford Dictionary, 3^rd^ 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.
2. Exceptional hardship
The Shorter Oxford English Dictionary, 3^rd^ 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.
According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounded under section 55.1 in the past.
Section 10 of Ontario Regulation 631/98 sets out the criteria that can and cannot be considered when determining if there is exceptional hardship. First, the Tribunal must consider if no alternative exists for the impounded vehicle. If there is no alternative, then the Tribunal must consider if 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.
Generally, the Tribunal may not consider:
- financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education if the owner of the motor vehicle 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.
The owner of the vehicle must prove all elements of the grounds of appeal on the balance of probabilities.
APPLICATION OF LAW TO FACTS
The Appellant has the onus to establish her grounds of appeal.
1) Due diligence
The legislation requires an owner of the motor vehicle to make reasonable efforts to determine if 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 before allowing that individual to drive.
A finding of due diligence will depend largely on the specific circumstances of each case. In her evidence, the Appellant stated she had never seen her friend drive a car and she did not ask him if he had a valid driver’s licence. The Appellant simply relied on the fact that he told her he drove to work and that he drove his children to and from various places. The Appellant took no steps to determine if her friend had a valid licence, despite the fact that she had known him for less than six months.
While the Tribunal acknowledges that the Appellant was only trying to be helpful, in the circumstances of this case, due diligence required more than assuming he had a valid driver’s licence. It was incumbent on the Appellant to enquire whether he had a valid driver’s licence. Therefore, the Tribunal finds that the Appellant did not exercise due diligence. Therefore the criteria prescribed under section 50.2(3)(c) of the Act has not been met and the appeal fails on this ground.
Exceptional hardship
According to section 10 of Ontario Regulation 631/98, when deciding if exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal must first consider if no alternative exists for the impounded motor vehicle.
The Tribunal finds that the Appellant has not demonstrated, on the balance of probabilities, that there is no alternative for the impounded motor vehicle. The Appellant lives in the center of town and has access to public transportation. She testified that she has been getting rides from friends and she takes public transportation. Her children have not missed any school and she has not missed any appointments. While there is no doubt that it is inconvenient for her to rely on others and take public transportation, the facts do not support a finding that she does not have an alternative for the impounded motor vehicle. Therefore, the Appellant has failed to prove on a balance of probabilities that no alternative exists for the impounded motor vehicle.
The Tribunal acknowledges that the Appellant is concerned that she will not have the financial resources to pay for the impoundment at the end of the 45-day period because she is currently receiving social assistance. While the Tribunal appreciates that the cost of the impoundment fees may be difficult, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. Furthermore, the financial loss would have to be immediate, significant and lasting.
Therefore, the Tribunal finds that the Appellant did not establish exceptional hardship. Therefore the criteria prescribed under section 50.2(3)(d) of the Act has not been met and the appeal fails on this ground.
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
Chantal Proulx, Vice-Chair
RELEASED: March 15, 2016