Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE:
2016-05-16
FILE:
10184 MVIA
CASE NAME:
10184 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:
Sonia De Santis, Agent
Heard by teleconference:
May 10, 2016
REASONS FOR DECISION
A hearing was held on May 10, 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.
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: 2006 MAZD M3I (the “vehicle”)
Date of Appeal: April 21, 2016
ISSUES
The Notice of Appeal (Exhibit 2) does not require the Appellant to specify the grounds for appeal. Moreover, even if the Appellant did specify the grounds, this does not preclude the Tribunal from considering any or all of the grounds. Based on the Appellant’s testimony, the Tribunal has considered the Appellant’s appeal on two grounds: 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.
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?
Issue 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 on the day of the impoundment, she had driven from the municipality in which she lives to another municipality to pick up the suspended driver and his children, and drive the children to their mother’s home in a third municipality. Because the Appellant is uncomfortable driving a portion of the highway, she asked the suspended driver to drive. The day before the impoundment, the Appellant had seen him use his driver’s licence as identification in order to buy cigarettes. Therefore, she assumed it was valid. Her understanding is that suspended drivers are required to return the licence to the Ministry of Transportation; she questioned why he would still have the licence in his possession if it was suspended. However, asked if she had ever examined the licence or asked the suspended driver about its status, she indicated she had not.
The Appellant and her two children live with her parents. The Appellant pays no rent. Before the impoundment of her vehicle, the Appellant worked two jobs; one from 7 p.m. to midnight Mondays to Fridays and a second one on Saturdays. Because of the time she is required to work, she was unable to make arrangements to reach these jobs the first week her vehicle was impounded. She estimated she lost approximately $550 in wages. Therefore, on April 28, 2016, she rented a vehicle for a two week period at the cost of approximately $700. To make up for her lost wages, the Appellant has taken a third job with hours of midnight to approximately 4:00 to 5:00 a.m. Her total income from her three jobs is approximately $900. The Appellant’s parents take care of her children while she is working.
The Appellant testified that her children are able to walk to school. The week before the Appellant rented the vehicle, they were unable to participate in extracurricular activities. No medical appointments have been missed.
The Appellant expressed her concern over both the high cost of renting a vehicle and the impoundment fees. She is living with her parents in order to save to move on her own and the costs represent a significant setback.
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 dangerous driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 12, 2016.
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.
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 that the driver’s licence of the suspended driver was not under suspension. The Appellant testified that the day before the impoundment, she had seen the suspended driver use his driver’s licence as identification to buy cigarettes and she therefore believed that he had a valid licence. She admitted that she had never asked him about the status of his licence. Rather, she assumed it was valid and questioned why he would still be in possession of his licence if it were suspended.
Due diligence requires care and attention; the Appellant must make active inquiries to determine the status of the licence. There is no evidence that the Appellant asked to view the suspended driver’s licence or made any other inquiry before she allowed him to take control of her vehicle. Therefore the appeal must fail on the grounds of due diligence as set out in subsection 50.2(3)(c) of the Act.
The second issue to be considered is whether or not the loss of the vehicle has resulted in exceptional hardship. With respect to the issue of exceptional hardship, Section 10 of Regulation 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 Applicant has an alternative to the motor vehicle.
In this case, there is an alternative to the impounded vehicle; the Appellant has rented a vehicle which she is using to reach her three jobs. Her children are able to walk to school. The Appellant and her children have no health issues and no medical appointments have been missed. While the Appellant did miss work the first week of the impoundment, she has taken on an extra job to compensate for the income she lost. While the $350 weekly rental cost represents a significant portion of the Appellant’s estimated $900 weekly income, the Tribunal notes that the Appellant pays no rent and the vehicle rental will be short term. Because the Appellant does have an alternative to the impounded vehicle, she has not established 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: May 16, 2016