Licence Tribunal
Appeal d'appel en
Tribunal matère de permis
2016-05-12
FILE:
10195/MVIA
CASE NAME:
10195 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:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
May 11, 2016
REASONS FOR DECISION
A hearing was held on May 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”).
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: 2013, HYUN, EGM (the “vehicle”)
Date of Appeal: April 20, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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, 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.
The Appellant allowed MM to drive his vehicle on the date it was detained. He has known MM for approximately 20 years, except that they fell out of touch for a period of 5 or 6 years. He had no knowledge that MM’s driver’s licence was under suspension since November 2009, until August 2017. He saw MM’s driver’s licence about a year ago when he went with him to pay a bill. He acknowledged that he only glanced at the licence and did not look at the expiry date. He did not ask to see MM’s licence before he allowed him to drive his vehicle on the day it was impounded. He has seen MM drive his girlfriend’s car on many occasions and assumed that he had a valid licence.
The Appellant is a member of the Carpenters Union. He was laid off work a number of months ago and is no longer eligible for unemployment insurance. He is now apprenticing and was offered a position with a big contractor which began on Monday, May 11th. The work requires him to travel to different job sites and to different cities. None of his co-workers can drive him, as they do not live in his city. He requires a car to get to the various job sites or he will lose his job. If he performs well for this contractor, he could be employed with it for 20 years, as it is a big company that has a lot of projects on the go.
He has two children to support and he is behind in child support payments. He was behind in child support payments before his vehicle was impounded as a result of being laid off.
He rented a vehicle to get to his new job. He borrowed money from his mother to rent the vehicle. His mother is on a fixed pension and he feels badly about having to borrow money from her.
MM does not have the money to cover the cost of getting his vehicle released. He stated that it could take MM years to come up with the money.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents filed by the Registrar and admitted into the record on consent 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 August 22, 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.
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 (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
Due Diligence
Based on the evidence, the Tribunal is not satisfied that the Appellant exercised due diligence in attempting to determine that MM had a valid driver’s licence on the date that he loaned him the vehicle and it was then detained to be impounded. The Appellant acknowledged that he did not ask to see MM’s driver’s licence before he loaned him the vehicle and simply assumed that MM had a valid licence because he has seen him drive his girlfriend’s vehicle on other occasions and because he glanced at his driver’s licence over a year ago when MM was paying a bill in his presence. He acknowledged that when he glanced at MM’s driver’s licence he did not notice the expiry date.
As such, the Tribunal finds that the Appellant made assumptions about MM holding a valid driver’s licence on the date in question and this falls far short of exercising due diligence, within the meaning of s. 50.2(3)(c) of the Act. Therefore, the appeal on the ground of “due diligence” has failed.
Exceptional Hardship
Based on the evidence, the Tribunal is also not satisfied that the impoundment will result in exceptional hardship within the meaning of the Act and O.Reg. 631/93. The provisions of section 10 of O.Reg. 631/98 are very strict and require the owner to demonstrate that every reasonable alternative to the impounded vehicle has been considered.
In this case, the Appellant borrowed money from his mother to rent a vehicle so he can get to and from his new job. As of May 9th, the Appellant is working for a big contractor who has a lot of work, and he indicated that if he performs well at work, he could be employed for this contractor for many years. As such, although he has other debts and obligations, he is now gainfully employed and would be in a position to continue to rent a vehicle and/or reimburse his mother for the cost of the rental vehicle. The Appellant indicated that he wants to be able to meet his child support obligations, but acknowledged that he was behind on his child support payments before the vehicle was impounded due to being laid off work. There was no evidence before the Tribunal that the children’s care has been impacted.
The Tribunal recognizes that it is costly to the Appellant to rent a vehicle, and that this cost aggravates his existing financial obligations. However, the Tribunal is bound to apply the legislation as it is written; even if the Appellant could show that there was no reasonable alternative to the impounded vehicle, in these particular circumstances, the costs of the impoundment do not qualify as a loss that is ‘immediate, significant and lasting.
As such, thee Tribunal finds that the Appellant has not met the onus under section 10(3)(a) of O.Reg. 631/98, namely “to demonstrate that no alternative to the impounded motor vehicle is available”. Therefore, the appeal on the ground of exceptional hardship has failed.
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
Jacqueline Castel, Member
RELEASED: May 12, 2016