LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act
Between:
Appellant Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Gary Yee, Associate Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and date of hearing:
By teleconference April 13, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW
A hearing was held on April 13, 2017 by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).
The Appellant’s vehicle was impounded on March 18, 2017. The Appellant filed his appeal on March 21, 2017. It was a commercial vehicle being driven by Mr. G, who was working for the Appellant’s business. Mr. G’s licence was suspended until February 2018 as a result of a Criminal Code conviction. The vehicle was impounded for 45 days.
The Tribunal considered the Appellant’s appeal of the impoundment on the basis that the impoundment will result in exceptional hardship, and furthermore, that he had exercised due diligence in checking the status of Mr. G’s driver’s licence.
The impounded vehicle is a commercial vehicle. The Appellant operates a business that involves installing and servicing air conditioners and furnaces. Mr. G started driving this extended van about three months ago, The Appellant had asked if he had a valid driver’s licence and Mr. G lied and said that he did. The Appellant has three other commercial vehicles being used for his business, and he said losing the use of this fourth one was causing a lot of hardship. His business is a small one and barely surviving.
As noted in the reasons below, the Tribunal dismisses the appeal and confirms the impoundment. In the circumstances of this case, it was not enough for the Appellant to rely only on asking a driver if he had a valid driver’s licence. On the exceptional hardship ground, the Appellant has proven that he has no reasonable alternative to the impounded vehicle. It is also clear that the Appellant’s business and personal life have been affected negatively by this impoundment. But the Appellant has not been able to prove that the financial loss caused by the impoundment meets the legislated test of being all three of “immediate, significant and lasting.”
ISSUE NO. 1 – Did the Appellant prove that he had exercised “due diligence” in checking the driver’s licence status of Mr. G?
Under section 50.2(3)(c) of the HTA, the Appellant must prove “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.”
The legislation does not define “due diligence.” The dictionary definitions of “due diligence” refer to words and concepts such as what was proper or what ought to be; or being careful. Black’s Law Dictionary refers to what is properly to be expected from a reasonable and prudent person under the particular circumstances. There is no absolute standard, but the required actions depend upon the particular circumstances, and an assessment of what a reasonable and cautious person would do under those circumstances.
The objective of the impoundment provisions in the HTA is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This will help to promote more safety on the roads.
Evidence
The Appellant has three commercial vehicles in his business, one of which is the 2000 Ford extended van that was impounded on March 18, 2017. The person who normally drives this truck was getting treatment for cancer, and the Appellant hired Mr. G to take over, about three months ago. Mr. G is a licensed gas fitter, and he drove this truck with another employee.
The Appellant’s business is audited every three years by the TSSA (Technical Standards and Safety Authority), which checks for proper licensing of the technicians – i.e., gas fitters used by the Appellant. When the Appellant asked Mr. G to take over from the employee with cancer, the Appellant asked if Mr. G’s TSSA licence and driver’s licence were all good, up to date and valid. Mr. G said yes, but it turned out that he was lying.
The Ministry’s disclosure to the Appellant and the Tribunal showed Mr. G’s driving record, which included a long history of driving offences, including a recent Criminal Code conviction for impaired driving that led to his licence being suspended until February 2018. Mr. G had not driven any of the Appellant’s vehicles before the past three months, even though he had done some work on and off for the Appellant for the past three years.
The Appellant was honest and frank in testifying that he did not check for the status of Mr. G’s driver’s licence in any other way. He asked Mr. G about it, but did not ask to see the actual licence, which may or may not have revealed a problem in this situation. There was no company policy in place for checking licences. The Appellant was not aware of the Ministry website service for confirming the status of a person’s driver’s licence. He said that he would start using it from now on.
Analysis
There is a range of actions for a vehicle owner to check the status of another person’s driver’s licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver’s licence, asking to see or examine a person’s driver’s licence, or using the Ministry’s telephone or online checking service and paying a small fee to verify the status. The level of inquiry and action required will depend on the nature of the relationship between the owner and the driver, as well as on the particular situation – for example, whether there was an indication that the driver had a past history of licence suspensions.
In this case, the Appellant only asked the driver if he had a valid driver’s licence. He did not take any other action. The Appellant was operating a business with five people working for him who had access to four commercial vehicles. There was no company policy or practice in place to ensure that the company’s vehicles were not being driven by suspended drivers. Under all of these circumstances, the Tribunal finds that the Appellant’s action in asking a question to Mr. G was not enough to show due diligence.
ISSUE NO. 2 – Does the loss of the impounded vehicle cause “exceptional hardship,” as defined by the Regulation?
- Under section 50.2(3)(d) of the HTA, the Appellant may appeal on the ground that “that the impoundment will result in exceptional hardship.” Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
“… the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impoundment period.”
- If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), whether the impoundment will result in:
− financial or economic loss to any person;
− loss of employment or employment opportunity to any person; or
− loss of education or training or of an educational or training opportunity to any person
- Furthermore, under the Regulation, the Appellant must prove that “the loss will be immediate, significant and lasting.” And s. 10(2)(a) of the Regulation states that the Tribunal is not permitted to consider whether the impoundment will result in inconvenience to any person.
Evidence and Analysis – Alternative to the Impounded Vehicle
On the issue of any alternative to the impounded vehicle, the Appellant acknowledged that he still has three other commercial vehicles operating, including two extended vans, but it is not feasible to replace the impounded vehicle. This is causing him to lose a couple of jobs, and delay some other jobs. He has also tried to hire some subcontractors who have their own suitable vehicles, to do some of the jobs that require a larger vehicle.
The impounded vehicle is an extended van that has a ladder rack. The Appellant has tried to replace it with a pick-up truck that he has, but it is too small and there is no cover or cap on the back. Although he was able to retrieve most of the equipment that was in the impounded vehicle, it has been a problem to go to job sites by transporting that equipment in the back of his pick-up truck, which is uncovered and gets wet when it rains. This pick-up truck is also too small to replace the work that was done by the impounded vehicle.
The Appellant also has another regular size van that is not insured and that has not been used. But he said that it is too small for the installation jobs that require transporting a furnace or air conditioner, as well as the pipe vise and cutting equipment. The Appellant said he could use it for the servicing part of his business, as opposed to the installation part, but he would then have to insure it, and that is very costly.
Although the Registrar’s representative provided information about ladder racks being under $200, the Appellant said that there would also be installation costs, and it was not feasible to install the ladder racks on a rental vehicle or one of his existing vehicles. The ladders were needed more for any of the commercial jobs.
On the basis of this evidence, the Tribunal finds that the impounded vehicle cannot reasonably be replaced. It is an extended van with a ladder rack, and the Appellant cannot use or rent another vehicle that can perform the same functions as the impounded vehicle. While the Appellant has tried to continue operating his business by deferring some jobs and trying to get by with a pick-up truck, those actions do not seem to be enough to be a reasonable replacement for not having the use of this impounded vehicle.
However, the finding that there is no reasonable alternative to the impounded vehicle is only the first part of the legal test to prove exceptional hardship. It is the other strict requirements which the Appellant is not able to meet, as shown below.
Evidence and Analysis – Is the Loss “Immediate, Significant and Lasting?”
The Appellant stated that he runs a small company. He guessed that his business amounted to about $700,000 annually, but it is barely surviving. He said that he cannot afford the additional costs and the loss of business that has resulted from this impoundment.
The Appellant gets most of his business through word of mouth. He hires a lot of subcontractors but they mostly do not have their own vehicles. He has continued to operate without the impounded truck, but he has had to delay some of the installation and servicing jobs, and he has lost a couple of the servicing jobs when he tells the customer that he cannot do it yet.
The Appellant has already advertised to hire another mechanic, and he is hoping his worker with cancer will be able to return soon. If he had his impounded vehicle back, he would need to hire a crew of two workers.
It is not clear from the evidence how much money or business the Appellant has lost because of one of his three extended vans being impounded. The Tribunal finds that some business was lost, but it does not seem to be more than a few contracts, and there was no dollar figure estimated for this.
The Appellant was a credible witness and the Tribunal believes that his business is not doing well. The Appellant testified about how he could not afford to buy insurance to enable an unused vehicle to be used, or how all the costs would add up if he had to take certain steps to find a substitute for the impounded vehicle. The Appellant also said that it was the slow season and it is hard to make a living. Overall, the Tribunal finds that there is no evidence about how much of this cash flow or affordability problem is being caused by the impoundment.
The law requires that any financial loss be all three of immediate, significant and lasting. While there appear to be immediate financial losses caused by the impoundment, there is not enough evidence to show that the losses are also both significant and lasting. The Appellant did not raise the issue of the impoundment costs, and his evidence about the lost business was not clear or complete enough for the Tribunal to find anything more than a few servicing jobs being lost. Even if the quantity of lost business or profits may be higher than this, there is little, if any, evidence that the Appellant’s business will go under or that it will take a long period of time for him to recover from the financial impact of this impoundment.
The Appellant was an honest witness and he clearly has suffered financially and emotionally from this impoundment. The loss of his commercial vehicle for 45 days and the costs of paying the towing and storage may appear to be disproportionate to the mistake that the Appellant made in not checking enough into the worker’s driving licence status, but the Tribunal does not have any power in the Act or Regulations to reduce the period of impoundment from the required 45 days. These are the mandatory consequences if the Appellant cannot prove one of the grounds of appeal.
The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities. The hardship and inconvenience suffered by the Appellant is not enough to prove that the legal test for exceptional hardship has been met. As noted earlier, the Appellant also has not proven the due diligence ground.
ORDER
- For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair
RELEASED: April 18, 2017