Licence Appeal Tribunal
FILE: 10204/MVIA
CASE NAME: 10204 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
10204 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: Sanjay Kapur, Agent
Heard by teleconference: May 24, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on May 24, 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 “Act”).
By order dated May 24, 2016, pursuant to section 50.2 (5), the Tribunal ordered the registrar to release the vehicle. These are the reasons for that Order.
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: 2011 Ford F/L (the “vehicle”)
Date of Appeal: April 27, 2016
MOTION FOR EXTENSION OF TIME
The Appellant’s vehicle was impounded on April 10, 2016. Section 9 of Ontario Regulation 631/98 states:
An appeal to the Tribunal under section 50.2 of the Act with respect to the impoundment of a motor vehicle under section 55.1 of the Act shall be commenced by filing with the Tribunal a notice of appeal, together with the fee established by the Tribunal, within 15 days after the day the vehicle was detained under subsection 55.1 (1) of the Act.
The Appellant’s Notice of Appeal was received on April 27, 2016, only two days after the expiration of the fifteen day period in which to file an appeal. When the Appellant was advised by Tribunal staff that the Notice of Appeal was received after the appeal period had expired, the Appellant then filed a Notice of Motion, which was received on April 29, 2016. The motion was brought pursuant to section 7 of the Licence Appeal Tribunal Act, 1999.
In order to succeed on her motion, the Appellant must demonstrate that there are reasonable grounds to grant the extension of time.
The decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act 2002, 2012 ONSC 1492, on appeal from this Tribunal, sets out the four factors to be considered in assessing a request for an extension of time, as follows:
The existence of a bona fide intention to appeal, within the appeal period;
The length of the delay;
Prejudice to the other party (the Registrar); and
The merits of the appeal.
Citing Frey v. Macdonald, [1989] O.J. No. 236 (C.A.), the Court stated that the general rule is that time for an appeal is not extended unless the Appellant has shown that these factors support an extension.
The Appellant testified that the appeal was filed late because she was not aware of the right to appeal. She was given no documents by the police officer when her vehicle was impounded. She testified that she also had conversations with the impound facility trying to find out when her vehicle would be released but they were not helpful. She only learned of her right to appeal after being informed by a friend who had previously had a vehicle impounded. She stated that immediately after this conversation, she conducted her own online research and filed the appeal.
Ontario Provincial Police Constable Kyle Maki testified on behalf of the Registrar. He testified that normal procedure is for the Notice to Registrar form, which includes information about the right to appeal, to be completed and handed to the vehicle owner at the time the vehicle is impounded. However, in this case, Constable Maki advised that when he pulled the Appellant’s vehicle over, he detected alcohol on the breath of the suspended driver. Because time was of the essence for testing, and the police station was approximately an hour drive away, he drove the suspended driver to the station and completed the Notice to Registrar there. He then gave the forms to the suspended driver to give to the Appellant.
Asked if she did receive a mailed copy of the Ministry of Transportation’s Notice of Impoundment, which the Appellant testified she did not. The Tribunal noted that her address on other records filed by the Ministry is not the one on her Notice of Appeal. The Appellant explained that the address on the Ministry’s records is her husband’s, where she no longer lives.
Notwithstanding the fact that the Appellant, by failing to change her address with the Ministry of Transportation, may be partially responsible for the fact she did not know about her right to appeal. There is no dispute that she was not provided with a copy of the Notice to Registrar by the police officer. The Tribunal notes that the Notice of Appeal was received only two days after the expiration of the appeal period. When notified of the requirement to file a motion for the extension of time, the Appellant responded immediately. Therefore, the Tribunal finds that there was a genuine intention to appeal.
The Tribunal notes that there was some delay in scheduling the hearing, in part due to the fact the Notice of Appeal was incomplete because the Appellant had received neither a Notice of Impoundment nor a Notice to Registrar. The Tribunal staff then spent some time to determine the status of the impoundment. The delay has resulted in some prejudice to the Registrar, as the Registrar would be responsible for the accrued costs of the impoundment if the Appellant is successful in the appeal. However, given the Appellant appealed only two days after the expiration of the appeal period, the Tribunal finds her right to have her appeal heard outweighs the prejudice to the Registrar.
With respect to the merits of the appeal, the reasons for appeal set out in the Appellant’s Notice of Appeal indicate that she is appealing on the ground of exceptional hardship. The Appellant noted that the loss of her vehicle placed her at risk of losing her employment. Given the Appellant lives in a small municipality, the Tribunal concluded that there is potential merit to the appeal. The Tribunal therefore granted the motion for extension of time and heard the detailed evidence.
ISSUES
The Notice of Appeal (Exhibit 2) does not require the Appellant to specify the grounds for appeal. And, 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.
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 is a single mother who lives in a very small summer resort town with her three teenage children. The two younger children attend school and the oldest works part time. The Appellant leases a space and operates a restaurant which is open for breakfast and lunch only. She testified that work in the area where she lives is highly seasonal and that while she remains open year round, the bulk of her business is in the summer months.
At the time her vehicle was impounded, the Appellant was living with a roommate. She testified that while she knew who the suspended driver was because of the size of the town, she did not know him until he began to visit her roommate. On the day of the impoundment, the Appellant testified that she had returned home from work and had two to three drinks. She and the suspended driver decided to visit friends. However, the Appellant did not believe she should be driving and allowed the suspended driver to operate her vehicle. She testified that she assumed he had a driver’s licence because she had seen him operate his own vehicle many times. He has operated her vehicle before, driving it a short distance from her home to the store and back without incident. She stated, “it never occurred to her” to ask to see his licence. She testified that they had driven only a few blocks when the vehicle was pulled over by police. As this was happening, the suspended driver told the Appellant that he did not have a licence.
The Appellant testified that since losing her vehicle, she has struggled. An occasional helper at her restaurant has driven her to obtain groceries both for the restaurant and her home. However, she testified that this individual is a senior citizen and she is reluctant to ask him for help on a regular basis. Her two younger children take the bus to school. She noted that because of the size of the municipalities in the area where she lives, each municipality has one of the schools. Her oldest son was able to arrange for a ride to his employment. However, her younger son has not been able to enrol in summer sports programs because the Appellant is unable to drive him to participate. The Appellant also noted that her friends do not live close by and therefore, she is reluctant to ask them to drive to her municipality to assist her. She described her current situation as “living with the bare necessities”.
The Appellant testified that she was scheduled to start a second job two weeks ago. This is a seasonal job, working evenings, which she also held last summer. Because the job is in another small municipality some distance from her home, her only means of reaching it was with her vehicle. Her employer did not hold the job for her and has hired someone else. Asked if the job would be available to her at the end of the impoundment period, she stated that she had asked the employer but was told that she would only be hired if the new employee did not work out. Asked if she was actively looking for another job now, she stated that she had not focused on this because she could not search without a vehicle. Asked by the Tribunal to estimate her lost income, she initially stated that the lost second job represented approximately 30% of her income. After briefly considering the question, she amended the figure to 35%. The Appellant’s only source of income is what she earns from the restaurant she operates. She does not receive child support although she indicated she was trying to obtain this. She expressed concern about how she would be able to pay for the cost of the impoundment. She has spoken to the suspended driver but she “can’t get anything out of him”.
Asked about the fact that the Ministry of Transportation records indicate that she owns a second vehicle, the Appellant stated that she no longer possesses this 2001 vehicle.
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 operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended for life.
The Tribunal notes that the Appellant indicated she had not received the above documents which the Registrar’s representative indicated had been sent to her by courier. She then stated that this was likely the package that she had been notified was at the courier’s office in another municipality, which she had no means to reach. The content of the documents was explained to her and she agreed to their admission as exhibits.
Constable Kyle Maki of the Ontario Provincial Police testified on behalf of the Registrar. Constable Maki testified that the Ontario Provincial Police had received an anonymous call that the suspended driver had been seen driving a vehicle in the town where both the suspended driver and the Appellant live. On the day of the impoundment, he was on traffic duty and recognized the vehicle described in the call and pulled it over. The driver identified himself and said he was unlicensed. Constable Maki arrested him. He also failed the breathalyzer test.
The Appellant identified herself as the registered owner of the vehicle. Referring to his notes which were entered as Exhibit 4, Constable Maki testified that the Appellant advised him that she was aware that the driver did not have a licence, but not aware that he was a disqualified driver. His interpretation of this statement was that she knew he did not have a licence but did not know why. She told Constable Maki that she was not driving because, having had drinks, she was concerned about her ability to drive.
As noted above, the suspended driver was driven to the police station and was given the paperwork to give to the Appellant.
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.
- 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.
- 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) on 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 she had seen the suspended driver operating his own vehicle in the town in which they live and in fact, he had operated her vehicle before the day of the impoundment without issue. She admitted that it did not occur to her to ask to see his licence.
Due diligence requires care and attention; the Appellant must make active inquiries to determine the status of the licence. The Appellant made no attempt to determine the status of or to view the suspended driver’s licence before she gave him control of her vehicle. As she testified, “it never occurred to her”. 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 Appellant has an alternative to the motor vehicle.
In this case, the Appellant has managed her day-to-day activities with the assistance of friends, although with some struggle. However, the evidence is that the Appellant lost the second job she was scheduled to start because of the loss of her vehicle. The Appellant testified that the availability of work where she lives, a summer resort area, is seasonal. The second job, which would have run the course of the summer, is no longer available to her.
The Registrar’s representative submitted that the Appellant indicated that she did not need the second income enough to try to replace it. With respect, the Tribunal notes that the Registrar’s representative appears to have misheard the Appellant’s testimony. As the Tribunal confirmed with her, she indicated that because of where she lives, in an area with a number of very small municipalities some distance from each other, that she had not put her attention to finding a replacement job because she did not have a vehicle. At no time did she indicate that the loss of income was not significant to her.
The Registrar’s representative also suggested that the Tribunal should question the Appellant’s credibility, because Constable Maki testified that she told him she was aware that the suspended driver did not have a licence. She testified she only learned this when the vehicle was pulled over. The Registrar’s representative asked Constable Maki to explain the Appellant’s comments in detail and the Constable referred to his written notes. Constable Maki indicated his interpretation of her comment was that she was aware that he was unlicensed but unaware of why. In the Tribunal’s view, this is not inconsistent with the Appellant’s testimony that the suspended driver told her he was not licensed when the vehicle was stopped and before she spoke to the police officer. Therefore, the Tribunal does not find that this statement brings her credibility into question.
The lack of an alternate way to reach the second job the Appellant was scheduled to start two weeks ago, which led to her losing that job, has resulted in a significant loss of income to the Appellant; she estimated it represented 30 to 35% of her total summer income in an area which has a highly seasonal economy. This loss is immediate, significant and lasting. Job opportunities in such an environment can be limited. Therefore, the Tribunal finds that the loss of the vehicle has resulted in exceptional hardship in accordance with section 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 orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: May 31, 2016