Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10261/MVIA
CASE NAME: 10261 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.
10261 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia Cassidy, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: June 28, 2016
REASONS FOR DECISION
A hearing was held on June 28, 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 ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.1(3) of the HTA.
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: 2012 Ford Edge (the “vehicle”)
Date of Appeal: June 8, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that she 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, as provided in sections 50.2(3)(c) and (d) of the Act.
FACTS
Evidence for the Appellant
The Appellant stated that she asked the driver if he had a licence to drive and he told her that he did. She stated he drives other people’s vehicles all the time and on the day he was driving her car, he told her he had a licence to drive.
The Appellant testified that the driver had never driven her car before the day it was impounded but, on that day, she had asked him to drive because she had a migraine. She did not ask to see his licence but testified she did ask him if he was licensed to drive and he told her he was.
The Appellant lives in a small, rural community and drives over an hour to work. There is no way for her to get to work except by private vehicle; there is no public transit. There is no grocery store in her community and no way to get to one without the use of a vehicle.
She is a single mother with two children, one of whom is an infant with significant health issues and who attends day care while the Appellant is at work, Monday through Friday from 8:30 a.m. to 4:00 p.m. In order to retain her day care spot, her infant daughter can only miss 13 days. To date, the Appellant has missed three days of work and her daughter has, therefore, also missed day care because of the impoundment. The day care has called a couple of times because her daughter has also missed days because she has been sick, and to miss additional days because of lack of transportation may cost her the day care spot they desperately need.
The Appellant’s infant daughter has on-going health issues. In February of this year, she was in a coma caused by a virus which has left her very susceptible to respiratory issues. The Appellant’s evidence is that she has been back to the hospital several times, the most recent being on June 23, 2016, when she was seen and released. The Appellant was able to get a friend to drive them to the hospital which is in the same community where she works and her daughter’s day care is, which is over an hour away from their home.
The Appellant stated the only alternative to getting her vehicle back would be to rent a vehicle but she cannot afford to do so. Her employer is not aware of the fact her vehicle was impounded because she is too embarrassed to tell them. She recently returned to work after being off on maternity leave. She has no family here; they reside in Alberta and are not in a position to assist the Appellant. She stated her mother did give her half the cost of filing this appeal but cannot afford to assist much more. The Appellant does have a neighbour who is presently laid off from work and will sometimes drive her. She is new to the community where she and her children reside and she doesn’t know many people. The Appellant’s evidence is that she cannot come up with the money to rent a vehicle; all she has left after paying her family’s living expenses is enough to pay gas money for rides she can get.
The Appellant stated concern for not having access to a vehicle when she is alone with her two children, one of whom is unwell and this was persuasive. She fears not being able to get her daughter to emergency in a timely fashion when the need arises. She acknowledges she could call 911 and an ambulance would respond, but they are more than an hour from the hospital and would have some wait time before the ambulance arrived. The neighbour, who is presently laid off from work and has assisted by giving the Appellant rides in exchange for gas money is not always available and cannot be depended upon 24/7 to provide assistance. There is nobody on whom the Appellant can rely to be available as needed and when needed.
The impounded vehicle is the only vehicle the Appellant has. There is no alternate vehicle.
Evidence for the Registrar
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 that the driver at the time of impoundment had been convicted of driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 27, 2017.
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.
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).
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....
Black’s Law Dictionary (sixth edition) at page 457 defines due diligence 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.
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
The evidence discloses that the vehicle was being operated by the suspended driver at the time it was detained. Accordingly, it was properly impounded. The evidence also discloses that the Appellant’s particular circumstances create conditions which meet the detailed requirements of section 10 of the Regulation, and the Tribunal finds that the loss of the vehicle will result in exceptional hardship on the Appellant and her family.
There is no reasonable alternative to the impounded vehicle on which the Appellant can rely. The Appellant lives in a small rural community that has no public transit and is far away from her work, her child’s day care and any health care for her daughter who has significant health problems. The Appellant cannot afford to rent a car, and she cannot be expected to continue to rely on her neighbour, especially if there is any need to have a vehicle to drive her sick daughter on short notice.
Under the circumstances, the Tribunal may consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle. The Appellant’s infant daughter is not well and needs to get to medical appointments and frequently needs to get to emergency care which is more than an hour away. In addition, in order for the Appellant to support her family, it is necessary for her to get to her employment and get her daughter to day care, both of which are also an hour away. But the Tribunal does not need to determine if there will be any financial loss to the Appellant that will meet the test of being “immediate, significant and lasting,” because the risk to the health of the Appellant’s daughter is enough in this case to support a finding of exceptional hardship.
In consideration of the foregoing, it is not necessary to determine the issue of due diligence.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy, Vice-Chair
RELEASED: June 30, 2016