Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10043/MVIA
CASE NAME: 10043 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: Patricia L. Cassidy, 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 pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. 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: 1997 Chev Pick-up (the “vehicle”)
Date of Appeal: February 12, 2016
This hearing of matter was originally scheduled to proceed on March 8, 2016 at 1:30 p.m. Unfortunately, on that date, the Appellant was in hospital and not available to participate in the hearing. His son did attend, via teleconference on March 8, 2016 and, on consent, the hearing was adjourned to March 11, 2016 at 9:30 a.m.
The hearing proceeded on Friday, March 11, 2016.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that he 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.
Neither the Appellant nor his wife drives anymore. The Appellant’s vision is very poor and he relies on others to do all the driving. The Appellant testified that on the day in question, he was at his office but was feeling unwell and decided he would lock his vehicle and take a taxi home, when he was approached by an individual he knew “casually”. This man was known to the Appellant as a friend of one of the Appellant’s tenants. That tenant is handicapped and this man was known to the Appellant as someone who frequently assists that tenant. The Appellant testified that this man saw how ill he was and offered to drive him home. Initially the Appellant thanked him and said he was simply going to lock up and take a taxi home but the man insisted, given how unwell the Appellant was, that he would just drive him home and then return the truck to the office and lock it rather than have the Appellant wait for a taxi stating, “You’re too sick.”
The Appellant stated that it never occurred to him to ask the man if he had a valid driver’s licence; that it never crossed his mind that the man would offer to drive him home if he did not have a licence. He elaborated that even if he had asked; he would not have been able to confirm the validity of the man’s licence because he is blind and would not have been able to read it if one had been produced. He acknowledged that he had not asked if the man had a valid driver’s licence; he was very ill, he received a kind offer from a fellow he had known casually for over a year as someone who assists a handicapped tenant on a regular basis.
The Appellant elaborated that his son, David, does most of his driving. He sometimes does have employees drive him but it is mostly his son. In reference to his son and the assistance he provides, the Appellant stated, “I couldn’t live without him.” The Appellant stated that he has real estate holdings and that he does the administrative work and required repairs for his properties. He stated he has 10 different tenants whom he looks after and he needs the vehicle, which is a truck, to get the materials he requires to do the work. He elaborated that repairs have been put on hold because he needs the truck to get the necessary supplies. Consideration was given to renting a van from Home Depot but repairs have been put on hold.
While the appellant does have another vehicle licensed, it is a Buick sedan which is not sufficient to carry the supplies required for the necessary repairs. He cannot transport sheets of dry wall or lengths of pipe without a truck. Further, while the Buick is licensed, it is parked in the Appellant’s driveway at home and used only in the event of an emergency when his son is not available and either the Appellant or his wife require urgent transportation. With the car available, they can call upon a neighbour to drive them. But he mostly relies on his son but they require the truck to get the necessities to maintain his real estate holdings and service the tenants.
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 a lengthy history of driving offences and various suspensions and 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 license of the driver was then and remains under a life time suspension.
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, 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.
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, 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.
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.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- 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 if the owner demonstrates that
- 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
It is the Appellant’s evidence that he assumed the person who offered to drive him home had a valid licence to drive. He did not ask if he had one. At a minimum, in order to satisfy the requirement that he exercise due diligence, the Appellant ought to have attempted to determine that the driver had a valid licence to operate a motor vehicle. He should not have relied on a presumption that this person must have been licensed to drive. His appeal on this ground must fail.
With regard to the ground of exceptional hardship, there are, on the evidence alternatives available by way of rental vehicles that can be used to carry the building materials needed to do repairs on the Appellant’s rental properties. But the Appellant did not provide an adequate explanation regarding why a suitable vehicle has not been rented other than saying that required repairs to his properties have been put on hold for the time being. Furthermore, even if the Appellant could have proven that there was no reasonable alternative to the impounded vehicle, the hardship caused by the impound fees and the obvious inconvenience would not meet the test in the Regulation of being an “immediate, significant or lasting” loss. Consequently, the appeal on this ground must also 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
Patricia L. Cassidy, Vice-Chair
RELEASED: March 16, 2016