Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-04-12
FILE:
10110/MVIA
CASE NAME:
10110 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.
DAHV Research Group Inc.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
DVD, Agent
For the Respondent:
Julia Scorcia, Agent
Heard in Toronto:
April 7, 2016
REASONS FOR DECISION
A hearing was held on April 7, 2016, at Toronto, Ontario, 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: DAHV Research Group Inc.
Motor Vehicle: 2012 Dodge Caravan (the “vehicle”)
Date of Appeal: March 21, 2016
The Appellant is a corporation. DVD operated the company and was authorized by the sole officer, his spouse, AF, to appear on behalf of the company.
DVD and AF, as well as the suspended driver, are being referred to by their initials to protect their privacy.
ISSUES
The Appellant’s motor vehicle was impounded on March 17, 2016, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on two grounds: (1) they 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.
Therefore, the two issues for the Tribunal to consider are as follows.
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 as provided in section 50.2(3)(c)?
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship as provided in section 50.2(3)(d)?
FACTS
Evidence for the Appellant
DVD explained that the Appellant company is in the solar business, selling and installing solar energy systems. His wife, AF, is the owner and sole director of the company. DVD is its CEO. It is essentially a one-person operation. Its one vehicle is the impounded vehicle. Business slows down over the winter months in terms of installations, but DVD continues the sales work and attends trade shows. January and February are generally quiet months.
After his one employee quit in December 2015, he advertised for a new person and hired JM, the suspended driver. DVD was scheduled to have knee replacement surgery on January 5, 2016. He wanted someone who could help out with the business, do work on the family home which was being re-mortgaged to assist the business, and who could drive. The ability to drive was a paramount concern as DVD would be unable to drive for about six weeks after surgery. His spouse works full time as an insurance broker and would be unable to drive him about during the day. JM assured them that he had a licence.
When JM was hired he told DVD that he had just moved back to Ontario from British Columbia where he had been working for two years as a roofer. He had family in the Newmarket area (DVD met both his brother and his son), and was living on a boat at Holland Landing. With the winter weather, he was “crashing” on people’s couches. DVD allowed JM to sleep at the office and he worked with JM to draft a training program so that JM could qualify for the Ontario Works program. In DVD’s words, he “invested a lot in him”.
DVD and AF needed JM to drive, especially in the weeks following DVD’s surgery. Given that AF is an insurance broker and well aware of the need for a valid driver’s licence, they asked JM for a copy of his licence. JM first explained that he had a BC licence but had to get it transferred to Ontario. They never saw the BC licence. JM said he was looking into getting it transferred and told them that he knew he had 60 days to do so. DVD’s wife pressed JM for the licence. He responded that his licence was in his brother’s truck, in Newmarket, but that he would get it. JM was further hindered in getting the licence because of extensive dental surgery he was having.
When this story began to wear thin, JM responded that he had been to MTO, but had unpaid fines that he needed to pay first. In late January, when the van needed repairs, they contemplated renting a vehicle. Again they asked JM for his licence as they knew they would need to provide a valid driver’s licence to the rental agency if JM was going to be a driver. When JM did not provide the licence, they decided not to pursue the rental. By mid February, DVD was able to drive, so the issue about the driver’s licence became less pressing though DVD did acknowledge that JM did, from time to time, drive the van to pick up supplies from Home Depot. This was, in part, why JM was driving the van on March 17th.
To corroborate his evidence about the attempts to obtain the licence, DVD provided emails and texts which document their efforts. He also provided a letter written by his spouse to the insurance broker on January 12th indicating that they wanted to add JM to their policy and would try to get his driver’s licence that week.
When the vehicle was impounded, JM was arrested. After some discussion with his spouse, DVD went to the courthouse in Newmarket with the intention of posting bail and acting as JM’s surety. At that point, JM told him that he had a DUI when he was 18 years old. On that basis, DVD was prepared to help. DVD thought a deal had been agreed to between the duty counsel acting for JM and the Crown counsel; however, the Crown withdrew the deal. It was at this time that DVD learned that JM had four DUI offences, was behind on his child support and had several other criminal convictions. DVD was re-arrested with respect to his child support arrears (for which there was an outstanding warrant) and DVD has not spoken to him since.
DVD stated that they made repeated attempts to obtain JM’s licence. They were, unfortunately, repeatedly lied to. As he said, “I don’t know what more we could have done, except for giving him an ultimatum” and firing him. His rationale for not doing so was that as a one-person company he had found a person to work for him who seemed to have a good work ethic, told them a plausible story and did not “seem like a fraudster.” He drove really well; in fact, he was, in DVD’s view, at times overly cautious.
DVD stated that he believes that he and his wife went above and beyond what most people do in their attempts to see the licence. They had every intention of adding him to their insurance policy, as the evidence shows. They were very aware of the need to obtain a copy of the licence and made efforts to obtain it.
Regarding the ground of exceptional hardship, DVD testified that he has been trying to make a go of it at a very tough time for the solar installation business. He has no cash flow and is behind on his office rent. Without the van it is difficult to visit customers, view homes, and attend trade shows for business promotion. Though he and his wife have another vehicle, it is a standard transmission, which is a challenge for him to drive as he recuperates from his knee surgery. His wife also needs the vehicle to drive to and from work. As well, a van is necessary to transport displays and other materials to the trade shows. DVD did concede that his ability to do a trade show is somewhat impaired by the fact that he no longer has an employee to assist him.
The impound costs, on top of the cost of a rental vehicle, would, in his words, “blow them away.”
DVD did acknowledge that the business is slow in the winter, so cash flow is historically low at this time of year. He would spend the time pursuing pre-sales; business would usually pick up in March-April.
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 Applicant 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 failing to remain at the scene of an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended for life.
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 Tribunal is considering the Appellant’s appeal 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, 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.
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
The Tribunal found DVD to be credible, honest and forthright in his evidence. He quite understandably feels aggrieved at being so deceived by JM. He extended a helping hand to him, only to have that trust abused. He and his wife are embarrassed and upset at the situation in which they find themselves. The Tribunal has much sympathy for them; however, as noted by the Tribunal in other decisions, this is onerous legislation which can result in harsh consequences for a vehicle owner. For owners such as DVD and his spouse, it may seem punitive. But the Tribunal is bound by the statute; it has no jurisdiction to grant equitable relief, though there may be fact situations in which it would like to. There are no halfway measures available to the Tribunal, such as partial payment by a vehicle owner or a reduced impoundment period.
DVD expressed concern that JM was not at the hearing to corroborate his testimony. He thought it unfair the Registrar’s representative did not secure JM’s attendance at the hearing. However, the ground of “due diligence” must be assessed from the owner’s perspective, and JM’s evidence would not have added much in this case because the Tribunal did not need corroboration of DVD’s evidence. As noted above, the Tribunal had no reason to disbelieve him.
On the issue of due diligence, the key words are “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”. There is no doubt that DVD and AMF were well aware of the need for JM to have a valid driver’s licence if he was to drive the van. A key component of JM’s work duties involved driving. They made efforts, numerous efforts, to get a copy of his licence. DVD testified that JM’s reasons, or excuses, for not getting his licence seemed plausible. First, it was a BC licence that needed to be changed over at a Ministry of Transportation office, but then unpaid fines were an impediment. When pressed to at least provide the BC licence, it was in his brother’s truck. Then dental surgery prevented him from getting to his brother’s in a timely fashion. Weeks went by and the excuses continued. DVD asked rhetorically what more he could have done. The simple answer is that JM should not have been permitted to drive in the absence of showing them a valid licence.
As time progressed and DVD was able to drive again, the need to see the licence seemed to become less of a pressing issue, but JM was still allowed to drive. It may have been reasonable to accept excuses for a short time, but the impoundment occurred about two and a half months after JM started working for the Appellant. There were sufficient “red flags” that should have given DVD and his wife pause. DVD stated that there were no signs that JM was suspended or lying, but for the fact he failed again and again to provide the licence. To continue to allow JM to drive was neither reasonable nor prudent in these circumstances. They assumed some risk by permitting JM to drive given his failure, over a couple of months, to produce a valid licence. They never saw a driver’s licence, let alone make a determination that it was not under suspension.
DVD and AMF accepted the excuses from JM to their detriment. The appeal on the ground of “due diligence” must fail.
The final issue to be considered is whether or not the loss of the vehicle has resulted in exceptional hardship. The detailed provisions of section 10 of Regulation 631/98 are very specific and very strict. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment and narrowly limits what the Tribunal can consider as exceptional hardship.
The first hurdle is whether there is a reasonable alternative to the impounded vehicle. The Appellant company does not own another vehicle. AMF, the sole director, does. DVD as the operator of the business has access to her vehicle. He has used his spouse’s vehicle for business on occasion. This supports the finding that there is an alternative, though by no means ideal. The Tribunal accepts that having the one vehicle available is inconvenient for them as a family and difficult for DVD in his current physical condition, though it cannot be said to be a threat to his health and safety. Inconvenience is not, however, “exceptional hardship” as defined by the legislation.
Even if the Tribunal found that there is no alternative to the impounded vehicle, the Tribunal cannot conclude based on the evidence before it, that there is, in this case, a resulting financial or economic loss, which is “immediate, significant and lasting”, as required in the legislation. It is clear from DVD’s testimony that the Appellant company is experiencing a difficult financial period, but the Tribunal must also conclude on the evidence before it that the financial issues predate this impoundment. DVD stated, with candour, that the company was trying to survive a difficult patch. They had negotiated, prior to the impoundment, a re-mortgage of their home. The solar business is currently facing challenging times. Furthermore, some of the current difficulties are due to the gap from JM no longer being available to help out. It is likely that this impoundment could not have happened at a worse time for the business, but it also does not appear to be the cause of significant or lasting financial or economic loss; regrettably for DVD and AF, this does not meet the definition of the exceptional hardship ground of appeal as set out in the legislation.
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 McQuaid, Vice-Chair
RELEASED: April 12, 2016