Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10140/MVIA
CASE NAME: 10140 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.
Barrie Chrysler Dodge Jeep Ram Ltd. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: David Rolfe, Agent
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: April 20, 2016
REASONS FOR DECISION
This is an appeal by a motor vehicle dealer from the impoundment of one of their customer service shuttle vans on March 29, 2016, after an employee with a suspended driver’s licence drove the van. The motor vehicle dealer has a policy of checking the driver’s licence status of their employees once a year, but in this case, there was a delay or gap, and they had not perform the check due in late 2015, which would have revealed that this employee’s licence had been suspended in May 2015. The main issue in this appeal is whether the motor vehicle dealer “exercised due diligence in attempting to determine” that their employee’s driver’s licence was not under suspension. The second issue is whether the impoundment has caused “exceptional hardship” as defined in the legislation.
The Tribunal finds that the Appellant motor vehicle dealer has not proven either one of these grounds. Under section 50.2(5) of the Highway Traffic Act (the “Act”), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
The Appellant, Barrie Chrysler Dodge Jeep Ram Ltd., was represented by its Managing Partner and General Manager, David Rolfe. Mr. Rolfe was also affirmed as a witness at this teleconference hearing. There was no factual dispute on the evidence he provided about the actions taken by his company in checking their employees’ driver’s licence status, and about the consequences of the impoundment of this shuttle van.
ISSUE NO. 1 – Did the Appellant prove that it had exercised “due diligence” in checking the driver’s licence status of its salesperson?
The Tribunal finds that the Appellant did not exercise due diligence in attempting to determine that its employee’s licence had not been suspended. B.M. was permitted to drive one of the Appellant’s vehicles when his licence had been suspended about ten months earlier. The Appellant’s last licence check about 17 months earlier did not show enough care being taken in a situation where its employees had regular access to use of the Appellant’s vehicles.
Law – what is “due diligence”?
The Regulation does not define “due diligence.” The dictionary definitions of “due diligence” refer to words and concepts such as what was proper or what ought to be; or being careful. Black’s Law Dictionary refers to what is properly to be expected from a reasonable and prudent person under the particular circumstances. There is no absolute standard, but the required actions depend upon the particular circumstances, and an assessment of what a reasonable and cautious person would do under those circumstances.
The objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This will help to promote more safety on the roads.
Facts and Analysis – was there due diligence even though there was a delay this year in the Appellant’s checking of its employees’ licences?
Mr. Rolfe stated that his company’s process is to obtain driver’s licence abstracts for each of their employees once a year. There are about 90 employees. Each employee signs a consent form to permit the company to ask for this information from the Ministry of Transportation. The company then submits the drivers’ licence numbers in batches to the Ministry, pays a fee of $7 to $11 for each one (Mr. Rolfe wasn’t sure of the exact amount). The abstracts show the record of any convictions, demerit points and suspensions for the driver.
The last check was done in November or December 2014. There was no check done a year later because there was an amalgamation of four dealerships’ administration departments into the Appellant company’s location, which meant four accounting departments were merged into one. The activity surrounding this merger resulted in the annual drivers’ licence abstracts check being delayed.
This delay meant that there was no licence check performed on the salesperson, B.M., whose licence had been suspended for one year in May 2015 for a conviction for driving with a blood alcohol content over 0.8. He did not inform his employer and his employer had not checked his licence status before the impoundment that occurred on March 29, 2016 when B.M. drove the shuttle van.
Salespeople did not usually drive this van, which is used by a shuttle driver to drive customers or do deliveries. That day, B.M. used it for a work-related delivery. He was stopped by police who apparently saw him texting while driving, and the police discovered that his licence was suspended.
Mr. Rolfe pointed out that there was another kind of check performed in January 2016, when B.M. signed his new or renewed sales consultant employment contract. This contract had a standard term on page 11 that stated that a sales consultant “must have a valid driver’s licence.” This was a condition of a salesperson’s job, since he had to take customers on test drives and had to be able to drive the car if there were any problems. Also, he would sometimes drive cars for off-site work such as tinting or clean-up.
In cross-examination by the Ministry’s representative, Mr. Rolfe agreed that an employee could lie in signing that contract, and it is still the employer’s responsibility to make sure he had a valid driver’s licence. At the same time, Mr. Rolfe pointed out that the company couldn’t control a person who may lie to them, or not inform them about their licence suspension.
Mr. Rolfe stated that he had learned from this matter, and he is starting a new policy of driver’s licence abstract searches every six months, not just once a year. He said that the industry practice is once a year, but he would recommend the more frequent checking to their dealer group.
The Ministry’s representative pointed out that there had been about 17 months without any driver’s licence check, and this was in a situation where the suspended driver, B.M., had daily access to the Appellant’s vehicles. The Ministry’s representative stated that once a year could be reasonable enough, but that wasn’t done in this case.
The Tribunal acknowledges Mr. Rolfe’s understanding of this situation and his willingness to take responsibility and avoid a recurrence (and the Tribunal notes that the legislation provides for 90-day and then 180-day impoundment periods for subsequent impoundments from the same owner within two years or less). At the same time, the evidence is undisputed that there was a delay in checking the licences of Appellant’s employees this past year. The annual check that should have been done in November or December 2015 if the Appellant had followed its usual practice had not yet been done by the time B.M. drove the Appellant’s shuttle van on March 29, 2016. At that time, his licence had been suspended for about ten months already. The fact that this gap or delay was caused by a merger of dealerships or accounting departments does not provide justification for failing to check on B.M.’s licence in time to catch his suspension. This was a reasonably avoidable situation.
ISSUE NO. 2 – Does the loss of this shuttle van cause “exceptional hardship” to the Appellant motor vehicle dealer, as defined by the Regulation?
The Tribunal finds that the Appellant’s situation does not meet the detailed definition of “exceptional hardship” set out in the Regulation. There are reasonable alternatives to the shuttle van that was impounded, and there is no loss that is “immediate, significant and lasting.”
Law – what is “exceptional hardship”?
Section 10 of Ontario Regulation 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. To prove that there is no alternative to the impounded vehicle, section 10(4) requires the owner to show that they have considered and looked into “every reasonable option” that could avoid or minimize any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
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.
The details and restrictions of these provisions show how difficult it is to meet the definition of “exceptional hardship” under this legislation.
Facts and Analysis – can the Appellant show that there are no reasonable alternatives to the impounded shuttle van?
Mr. Rolfe stated that the Appellant has three shuttle vans, one of which is now impounded. There are seven shuttle drivers. These vans are mainly used to drive customers to and from the dealership. The Appellant is the only Chrysler dealer in a large area. The shuttle service begins at 7 a.m., and it is very busy. The loss of one of the three vans is causing problems, and they have had to use Mr. Rolfe’s own vehicle, but it is a 4x4 pick-up truck, which is not suitable for the older customers, which there are more of at this dealership.
Mr. Rolfe had not looked into renting a van because of the extra costs involved, especially since they would need to disclose its commercial use for insurance purposes. He also noted that a rental car would not be “lettered up” with the dealer name and graphics. Mr. Rolfe argued that he could not see why they should spend more money to rent a van when their own shuttle van was sitting unused in an impound lot.
Mr. Rolfe did not wish to use a dealer vehicle with dealer plates because this would be improper – dealer plates are to be put onto vehicles used for test drives, and there would be an insurance risk if these plates were used for a vehicle that was used to shuttle customers or do deliveries.
The Appellant’s Notice of Appeal mentioned possible layoffs of the shuttle drivers as a possible consequence, but he said no one had to be laid off because they were using his pick-up truck, and also, one of the drivers took a longer holiday. Mr. Rolfe acknowledged that his company was getting by, but it was not ideal. There were extra costs and they were not providing the level of customer service they needed to.
The Ministry’s representative pointed out that the Appellant had many vehicles and options. Using Mr. Rolfe’s pick-up truck is not ideal, but the Appellant can still operate its business and it has not laid off anyone. The Ministry submitted that the Appellant has not looked into every reasonable option, as required by the Regulation.
The Tribunal agrees with these points, and finds that the Appellant has not proven that they have no reasonable alternative to the impounded shuttle van. The use of the pick-up truck is not ideal, and the cost of renting a van may incur more expense, but the Appellant has not shown that these are unreasonable alternatives.
Furthermore, even if the Appellant could show that there are no alternatives to the impounded van, it would be very difficult for the Appellant to show that any financial or other loss in this situation was “immediate, significant and lasting.”
DECISION
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
Gary Yee, Associate Chair
RELEASED: April 22, 2016