Licence Appeal Tribunal
FILE: 10380/MVIA
CASE NAME: 10380 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
10380 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: August 25, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on August 25, 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 “Act”).
Pursuant to subsection 50.2(5) of the Act, the Tribunal sets aside the impoundment. As a result, the Registrar is ordered to release the Appellant’s motor vehicle.
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 BUIC RZV (the “vehicle”)
Date of Impoundment: July 30, 2016
Date of Appeal: August 8, 2016
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
In addition, some of the evidence before the Tribunal raises the possible argument that the owner had exercised due diligence under section 50.2(3)(c). In a hearing of this nature, the Tribunal may consider any grounds for relief that arise in the evidence without the requirement for an Appellant to specifically outline the grounds in the Notice of Appeal, as long as the Respondent is provided with an adequate opportunity to respond.
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?
FACTS
Evidence for the Appellant
During the hearing, the Appellant reiterated the comments on the Notice of Appeal. She pleaded for the return of the motor vehicle as she suffers from serious health issues and requires the vehicle to attend medical appointments and provide transportation for her 12-year-old twin boys who suffer from autism. The Appellant suffers from multiple medical issues. She sees a psychiatrist and attends weekly family counselling with her children as a result of the sudden death of their father. She attends a clinic every two weeks for pain injections for a chronic back problem which significantly limits her ability to walk long distances. She sees her family doctor bi-weekly and is on medication for depression and anxiety.
The Appellant is a widow with three children, ages 12 and 23 years. Her husband died suddenly last year and left her with very little. She lives on an Ontario Works living allowance of $333 per month and the child tax credit for her younger children. Her rent is paid automatically. She is waiting to be approved for a disability pension. Her financial situation is very strained and she has no family to help her. She cannot afford to pay for a taxi or rent a vehicle. Due to her limited living allowance, she frequently relies on the food bank to provide for her family. Her two younger sons attend a school outside of her district as the school provides more resources for autistic children. As this is an option she has chosen for her sons for the past five years, they are not entitled to publicly funded school transportation. She fears that her sons may have to change schools in September if she is not able to drive them. She is concerned as to how this will affect them, as they do not cope well with change. Her older son is employed and lives at home. She has not required him to pay any room and board as he is paying off his student loans.
The Appellant stated that on the day of the impoundment, she was attending a social function and had a few alcoholic drinks. The suspended driver offered to drive her home. Prior to accepting his offer, she stated that she asked him on three occasions if he had a licence and car insurance. The suspended driver assured her he had a licence. She believed him as she had seen him driving his mother’s vehicle in the recent past. Although she did not know him very well, she knew his mother quite well and was confident that his mother would not allow him to drive her vehicle if he did not have a valid licence. She conceded that she did not ask to see his licence as she trusted he was telling her the truth and was helping her out in offering to be a designated driver.
Since the impoundment of the vehicle, the Appellant has found herself much confined to her residence. She stated that public transit is two kilometres away from her residence and she is unable to walk this distance. As a result of her high level of anxiety, she finds it too overwhelming to use public transportation. Her oldest son is unable to assist her as he is relying on rides from a girlfriend to get to work.
Since the impoundment, the Appellant has missed eight appointments with various medical services. She has not been able to do regular grocery shopping as she cannot afford the cost of a taxi. A small convenience store located a few blocks from her residence has allowed her to buy food essentials. However, this has been costly and provides her with no fruits or vegetables.
In cross-examination, the Appellant was asked if she has sought assistance from Ontario Works for transportation expenses. She indicated that she did contact them and was offered about five bus tickets a month. In addition, the Appellant contacted the “Handi Transit” services to request transportation due to her limited mobility. She was told that she does not qualify for this service as she has not been approved for a disability pension. She requires a letter from her family doctor concerning her medical condition in order to use the service. She recently contacted her doctor and was told she would have to see him in person prior to the issuance of a letter. She reiterated that her medical conditions severely limit how much she can walk and handle at any one time. She has been so upset since the impoundment that her depression and anxiety are worse due to the hardship she is experiencing with the loss of the vehicle and its impact on her younger children. She is overwhelmed by the thought that she will be unable to pay the cost of the impoundment fees and lose the vehicle which she considers is a lifeline for herself and her children.
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 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 on September 9, 2014, of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 9, 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.
Ontario 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” and “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” and “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 also 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
In closing, the Appellant stated she requires the vehicle for transportation due to her medical condition. The loss of the vehicle has caused her significant hardship. She realizes she was too trusting of the suspended driver and regrets not asking him for proof of a valid licence.
The Agent for the Registrar stated that the Appellant failed to prove that due diligence was exercised and requested the Tribunal to confirm the impoundment. With respect to exceptional hardship, the Agent for the Registrar indicated that the Appellant has not considered other options that may be available to her to attend to her appointments and daily needs.
The onus is on the Appellant to establish her grounds of appeal as provided in sections 50.2(3) (c) and (d) of the Act, respectively: that the owner exercised due diligence and she has suffered exceptional hardship.
The Tribunal found the Appellant credible, sincere in her testimony and accepts that the Appellant has missed regular medical appointments which she needs to attend, and for which she requires a vehicle. She was a victim of an incident where she believed she was acting prudently in having someone drive her home as she had consumed a few drinks of alcohol. During her testimony, the Appellant was clearly distraught and at times overtaken by her set of circumstances and required time to regain composure.
The legislation requires an owner of a motor vehicle to make reasonable efforts to determine whether or not the licence of the person who is to drive the owner’s vehicle is valid. To rely on a defence of due diligence, an appellant must demonstrate that reasonable steps were taken to ensure the validity of an individual’s driver’s licence prior to allowing that individual to drive.
In each case, a finding of due diligence will depend largely on the specific circumstances. In her evidence, the Appellant stated she trusted the suspended driver and accepted his statement that he had a licence. She took no further steps to validate the information and was deceived by him.
The Appellant acknowledged she did not know the suspended driver very well. The circumstances required her to do more than to accept his word that he had a valid licence. The Appellant’s assumption that he had a valid licence as she had seen him drive his mother’s car in the past is not sufficient and it was incumbent upon the Appellant, in this situation, to request and examine the licence of the suspended driver before she allowed him to drive the vehicle.
The Tribunal finds that the Appellant’s assumption that the suspended driver had a valid driver’s licence does not constitute due diligence. Thus, the Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Regulation has not been met.
The Agent for the Registrar asserted that the Appellant has not looked into alternate transportation options. The Tribunal notes that the test is one of “every reasonable option”, not all possible alternatives. The Tribunal finds the Appellant has made reasonable efforts to find alternatives without much success. The Tribunal also finds that the Appellant’s medical problems are such that the use of public transportation is not a reasonable alternative. Her very limited income makes the use of a taxi service prohibitive. The Tribunal finds there is no reasonable alternative transportation available to the Appellant.
If there is no alternative to the impounded vehicle, then 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 is reliant on the vehicle as a life line for herself and her two sons who suffer from autism. This enables her to manage her daily needs, provide transportation for her disadvantaged children and to attend medical appointments so that her health can be monitored. The Tribunal is satisfied that all other elements of Regulation 10(3) are met. The Tribunal finds that the impoundment is causing a threat to the Appellant’s health and will soon impact on her children’s school attendance. Considering the entire circumstances of this case, the Appellant’s situation meets the definition of exceptional hardship.
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
Geneviève Blais, Member
Released: August 26, 2016