LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Date: 2017-04-26
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
Between:
Appellant
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Marisa Victor, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Place and date of hearing:
Teleconference, April 18, 2017
REASONS FOR DECISION AND ORDER
A. Overview
1A hearing was held on April 18, 2017 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").
2The Tribunal confirms the impoundment. As a result, the Appellant's motor vehicle will remain detained at the impoundment facility for 45 days.
B. BACKGROUND
3A 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 Hyundai Tucson (the "vehicle")
Date of Impoundment: March 21, 2017
Date of Appeal: March 31, 2017
4In the Appellant's Notice of Appeal (Exhibit #2), the owner appealed on the basis that he exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle was not under suspension and that the impoundment of the vehicle will result in exceptional hardship.
C. ISSUES
5The issues, before the Tribunal were:
a. Should the Tribunal order the Registrar to release the vehicle on the basis that the Appellant exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle was not under suspension?
b. Should the Tribunal order the Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship?
D. FACTS
6The Appellant is a self-employed courier driver. He loaned the vehicle to his girlfriend for a week while he was away working. His girlfriend does not have a driver's licence and required transport to medical appointments. She was to be driven in the Appellant's car by her friend, K.H. or her brother, S.
7The Appellant testified that he authorized K.H. to drive the car, though he did not know him. He stated he had never met the man before. He did not obtain K.H.'s last name until after the impoundment. The Appellant stated he made no attempt to ascertain whether K.H.'s driver's licence was valid because he did not "want to be a jerk".
8On the way back from a medical appointment in the city of St. Catharines, K.H. crashed the Appellant's vehicle into a parked car. Then K.H. and the Appellant's girlfriend fled the scene of the accident.
9The police contacted the Appellant to advise him of the car accident and that the vehicle had been impounded as the driver, K.H., was driving while his licence was suspended.
10The Appellant advised that since the impoundment, he has been using his work vehicle to get around. While he does have some mobility issues that date back several years, he has not had any medical appointments during the impoundment and the impoundment has not affected his health.
11The evidence tendered by the Registrar showed the following:
a. K.H. was driving while under a Criminal Code suspension;
b. K.H. had a significant driving record for driving while under suspension.
c. The Appellant is the owner of two operational vehicles.
E. LAW
12Section 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.
13The relevant section of 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.
14Regulation 631/98 provides that the prescribed period, referred to above, is two years.
15The 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.
16The Appellant has appealed under section (c) and (d).
17It is the Appellant who must present evidence to prove his appeal on a balance of probabilities.
Due Diligence
18"Due diligence" is not defined in the legislation. "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 person under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
19In order to establish due diligence within the meaning of s. 50.2(3)(c) of the Act, the Appellant must show that he took all reasonable steps to determine that the driver's licence in question was not under suspension at the time of the impoundment.
20The degree to which determination efforts are considered to be reasonable will vary with circumstances.
Exceptional Hardship
21Section 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.
22Generally, the Tribunal may not consider, except in certain circumstances:
a. financial or economic loss to any person,
b. loss of employment or employment opportunity to any person, or
c. loss of education or training.
23However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education if the owner of the motor vehicle demonstrates all of the following:
a. there is no alternative to the vehicle available,
b. the loss will be immediate, significant and lasting,
c. the impact will be on a person ordinarily transported by the vehicle, and
d. 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.
24According to subsection 10(4) of the Regulation, to show that no alternative to the impounded motor vehicle is available, the Appellant must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the period of the impoundment.
25The Regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
F. APPLICATION OF LAW TO FACTS
26The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles.
27The Appellant testified that he did not know the driver, K.H., and that he made no inquiries into whether he held a valid licence. He stated he did not "want to be a jerk."
28Under the circumstances, the Tribunal finds that the Appellant took no steps to exercise due diligence and this ground of the appeal must fail.
29With 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 cannot consider the Appellant's financial loss unless the Appellant has proven that he has no alternative to the impounded motor vehicle, and also that his loss is "immediate, significant and lasting."
30In this case, the evidence is that the Appellant owns two vehicles and has been using his other car as an alternative to the impounded vehicle during the impoundment period without any problem. Therefore, the Appellant has been unable to establish any exceptional hardship.
G. DECISION
1After 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.
Released: April 26, 2017
___________________________
Marisa Victor, Member