Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2016-01-28
FILE: 9985/MVIA
CASE NAME: 9985 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: Sanjay Kapur, Agent
Heard by teleconference: January 26, 2016
REASONS FOR DECISION
A hearing was held on January 26, 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 “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: 1996 Ford COF (the “vehicle”)
Date of Appeal: January 7, 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, all 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 testified that he loaned his vehicle to the suspended driver, whom he described as an acquaintance he had known for approximately five years. The suspended driver showed the Appellant a temporary British Columbia driver’s licence. However, the Appellant did not look at the licence closely and indicated he did not see the expiry date. Rather, he assumed the licence was valid. The acquaintance had previously lived in Ontario but had spent the summer in British Columbia. While the Appellant was not certain, he believed the suspended driver returned to Ontario in the fall, sometime in September or October 2015. The Appellant did not ask to see an Ontario driver’s licence.
The impounded vehicle is a truck which the Appellant uses in his auto repair business which employs three people. The truck is used to pick up spare parts and to haul a car trailer. The Appellant explained that this is the only truck the business uses because the trailer has an electric brake system. Since the impoundment, the Appellant has rented a truck “a couple of times” and has also been able to borrow a truck; however, he explained that this has cost him money. Notwithstanding that he has used these other trucks, he estimates that he has lost approximately 10% of his business income since the impoundment and noted that making arrangements for other vehicles has not been easy to manage.
The Appellant and other members of his family own other vehicles, including one which is capable of hauling a trailer. The impoundment of the truck has had no impact on the family’s daily household routine or their ability to get to work or to school. The Appellant described the vehicle capable of hauling the trailer as a “Sunday” vehicle which is primarily used by his wife for transportation to her workplace. He noted that he has chosen to rent or borrow a truck rather than use this vehicle to transport car parts or haul a trailer, noting that in the latter case the driver would be wearing greasy coveralls.
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 operating a motor vehicle while the driver’s ability was impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 17, 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 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 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 the Appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was impounded was not then under suspension. Section 50.2(3)(c) of the Act requires the owner of the vehicle to exercise due diligence. The onus of proof is on the Appellant to establish that due diligence was performed.
The Appellant testified that he did ask the suspended driver if he had a valid licence and was shown a temporary licence from British Columbia, where the suspended driver had been living during the summer of 2015. The Appellant admitted that he did not look at this licence closely. As he wrote in his Notice of Appeal, “I assumed he had a valid driver’s licence. I had no reason not to believe him”. Asked by the Tribunal how long the suspended driver had been back in Ontario, the Appellant said he believed since September or October. The vehicle was impounded on December 31, 2015. Due diligence requires that an owner exercise care and attention. The owner must make reasonable efforts to determine the status of the licence. While the Tribunal recognizes that the Appellant did make some effort to determine that the suspended driver had a licence, those efforts were not sufficient. The Appellant neither looked at the licence to verify it was valid nor questioned the fact that the suspended driver, whom he described as an acquaintance he sees approximately every six months, was still using a temporary licence from another province two months after he returned to Ontario. For these reasons, the Tribunal finds that the Appellant did not make reasonable efforts and therefore did not exercise due diligence in accordance with section 50.2(3)(c) of the Act.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 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. Section 10(4) of the regulation requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, the impounded vehicle is a truck used by the Appellant to haul a car trailer and to transport parts needed in his auto repair business. Since the impoundment, he has both rented and borrowed a truck, although he testified this has been difficult to manage and he estimates that the impoundment has cost him 10% of his income. As well, he owns another vehicle which is equipped to haul a trailer and could transport parts but has chosen to rent or borrow rather than use this vehicle. The evidence therefore indicates that the Appellant does have an alternative to the impounded vehicle. Therefore, the Tribunal cannot consider financial loss. For these reasons, the Tribunal finds that the Appellant 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: January 28, 2016```