Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-04-08
FILE:
10099/MVIA
CASE NAME:
10099 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
April 5, 2016
REASONS FOR DECISION
A hearing was held on April 5, 2016, at Toronto, Ontario, 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: 2003 Ford SPE (the “vehicle”)
Date of Appeal: March 18, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the vehicle owner 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
The Appellant testified that she met the suspended driver on-line. After daily texting and telephone calls, they met in person for the first time the weekend that the Appellant’s vehicle was impounded. The Appellant is a recovering alcoholic and stated that she does not want to be around people who drink socially. Therefore, after discussing “safe places” where she and the suspended driver could go to socialize, they met at a mall. They then decided to go to Niagara Falls for the weekend, even though the Appellant was concerned about the environment she would be in.
The Appellant stated that she was conned. The suspended driver works as a contractor and he never told her the status of his licence or that he needed a ride to and from work.
The Appellant did drink while she was in Niagara Falls. She believes that something might have been put into her drink. She does not remember the details but she was arrested for trespassing at the motel at which she and the suspended driver were staying and for damaging a police car. She does not know why she was arrested and jailed and the suspended driver was not.
The morning following her arrest, the Appellant’s father drove to pick her up from the police station. Her father was concerned about how she would get home since she was still intoxicated. However, he was prepared to have her vehicle towed back to their home. Her vehicle was still at the motel but she could not go there because of the trespassing charge against her. Her father therefore knocked on the door of the room where the Appellant and suspended driver had stayed and spoke to the suspended driver. The suspended driver told her father that he was prepared to drive the Appellant and her vehicle back to her home. Her father asked the suspended driver if he had a licence and was told he did. When the suspended driver picked her up outside the motel area, the Appellant also asked if he had a licence and was told he did.
Very shortly after the drive home began, the vehicle was involved in a collision while making a turn. The Appellant was concerned but knew she had insurance. She advised the suspended driver to pull over so information could be exchanged with the driver of the other vehicle. However, once police were mentioned, the suspended driver’s behaviour changed. He started to react and said he was going to go to jail. The Appellant thought he was fearful because there might be outstanding warrants for his arrest; it never occurred to her that his behaviour was because he did not have a licence. She noted that when they had gone out the evening before, he did not have his wallet with him, and he gave her his identification and credit card to hold for him. She stated that he did not give her a driver’s licence.
The Appellant is a single mother with teenage children. The Appellant moved back to her parents’ home as part of her alcohol rehabilitation. However, she works at another municipality a lengthy distance from her parents’ home at a job she began approximately four months ago. Although she plans to find a place to live closer to her employment, she currently stays with her son, who is attending school in a municipality closer to her workplace, during the work week. On weekends she drives back to her parents’ home.
The Appellant testified that the first week she was without her vehicle was a challenge and she took that week off work to make arrangements. Because she has not yet been at her new job long enough to earn her vacation, she described the week as “lost”. The Appellant’s job requires her to have the use of a vehicle. Therefore, with the assistance of her father, the Appellant purchased a used vehicle. However, that vehicle had problems almost immediately and had to be repaired. A third vehicle is also registered to the Appellant but she explained that this was actually a gift to her son who relies on it to get to school. While her son did provide her with rides while her newly purchased vehicle was in for repair, she stated that he should not be punished for her mistake. She also had some assistance from friends.
When the Appellant did get her vehicle back from repair, it had further problems and had to be left again to be fixed. However, she testified that as of the day of this hearing, she had the vehicle back and was driving it. Asked if she had looked into renting a vehicle, she stated that the cost of purchasing the replacement vehicle was about equal to the cost of renting one and noted that she does not have the credit card which is required to rent one.
The Appellant stated that her income is approximately $45,000 a year. She noted that the cost of the impoundment fees would be very difficult for her to pay.
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then 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 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, 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.
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
The first issue to be considered is whether or not the Appellant exercised due diligence in attempting to determine the status of the suspended driver’s licence. The Appellant testified that both she and her father did ask the suspended driver if he had a licence. Both accepted the suspended driver’s word that he did, even though the Appellant had noted the evening before the impoundment that a driver’s licence was not among the articles the suspended driver had asked her to hold for him.
Due diligence requires that care and attention be exercised. At a minimum, this would require that a driver’s licence be examined to check its validity. While the Tribunal recognizes that the Appellant did make some attempt to determine that the suspended driver had a licence, in this case, that attempt did not go far enough. The Act requires a driver of a motor vehicle to carry his or her licence at all times when he or she is in charge of a motor vehicle. The Appellant did not ask to see the suspended driver’s licence. While this may be somewhat understandable under the circumstances the Appellant found herself in, merely asking about the status of the licence does not constitute due diligence, especially given the Appellant did not know the driver very well, having just met him in person for the first time. Therefore, the Tribunal finds that the she did not exercise due diligence in accordance with section 50.2(3)(c) of the Act.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 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 must first consider whether the Appellant has an alternative to the motor vehicle. Section 10(4) of the regulation requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, the evidence indicates that, in addition to the impounded vehicle, the Appellant has two other vehicles registered in her name. In fact, the Appellant purchased one of these two vehicles after the impoundment to replace the impounded vehicle. The Tribunal acknowledges that the Appellant has had some issues with this vehicle that have meant she did not have the use of it while it was being repaired. However, she testified that as of the day of this hearing, she has the vehicle in her possession and is driving it. The Tribunal notes that the other vehicle registered in her name was actually purchased for and is driven by her son. While the Appellant stated that she did not believe her son should be punished for her mistakes, her son was able to help her while her newly purchased vehicle was being repaired.
The Appellant stated that she cannot afford to pay the fees associated with the impoundment. However, the Tribunal cannot consider these costs in determining if the loss of the vehicle has resulted in exceptional hardship. While the Appellant did describe some level of inconvenience caused by the impoundment, including the fact that she lost a week of work in order to make alternate arrangements, the evidence indicates that she does have 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, Member
RELEASED: April 8, 2016