Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-03-08
FILE:
7890/MVIA
CASE NAME:
7890 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.
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
ANTOINE AOUAD, M. D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
SONIA DE SANTIS, Agent
JAY SHANMORGAN, Agent
Heard in Toronto
February 26, 2013
REASONS FOR DECISION
A hearing was held on February 26, 2013, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result, the Applicant’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 Applicant
Motor Vehicle: 1998 NISS MAX (the “vehicle”)
Date of Appeal: February 7, 2013
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’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 as provided in section 50.2(3)(c) 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?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #1. The Applicant asks for the return of the vehicle as he was unaware of the licence suspension at the time the car was driven by his sister’s common law spouse.
At the hearing, the Applicant explained that he did not have the space to park his car at his own premises and parked it at his sister’s place. Unbeknownst to him, his brother-in-law took the car without his knowledge, and that he was totally unaware that his brother-in-law, the driver, was suspended. The Applicant did state that his sister and brother-in-law have been living together for 10 years.
In cross-examination, the Applicant confirmed that the keys to the vehicle were left at his sister’s place so that the car could be moved as needed.
The Applicant admitted that he made no effort to verify the validity of the licence, as he had seen his brother-in-law drive on other occasions. According to the Applicant, the vehicle had been at his sister’s for two weeks when it was impounded.
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 Applicant 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 Blood/Alcohol Content in Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for Life.
The Registrar called no other evidence.
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 Applicant here appeals on the basis of sections 50.2(3) (c).
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.
APPLICATION OF LAW TO FACTS
In closing, the Applicant stated that he is self-employed and needs the vehicle, nonetheless it would never have occurred to him to check his brother-in-law’s licence.
The Registrar’s Agent noted that the Applicant appealed on due diligence.
According to the Registrar’s Agent, exercising “due diligence” requires that the owner of the vehicle “do something” to protect the vehicle from being driven by unlicensed drivers. There is evidence that the vehicle and the keys were left with the Applicant’s sister and no restrictions were imposed to prevent the vehicle from being driven.
In summary, the Registrar’s Agent asked that the Registrar’s order to impound be confirmed.
The onus is on the Applicant to establish that the licence was not suspended at the time of impoundment, or that due diligence was exercised, as provided in section 50.2(3)(c) which, prescribes:
(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 in respect of which the order was made was not then under suspension;…
Legislation intends that owners of motor vehicles attempt to determine that the licence of the person who is to drive the owner’s car is not under suspension. The courts have held that to rely on a defence of due diligence, an Applicant 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.
The Applicant states that he was not aware of the licence suspension. The Tribunal does note, however, that the driver and the Applicant’s sister have been living together for 10 years and the driver’s licence had been suspended, for life, since 2004. On the balance of probabilities, it is unlikely, on these facts, that there was no such awareness. His brother- in- law may have paid little heed to the driving prohibition as indicated by the fact that the Applicant had seen him drive (and therefore seemed to make no effort to ensure he did not drive his vehicle), but it is incumbent upon an owner of a vehicle not to make available a vehicle for a suspended driver’s use. The Act does provide for recovery of the cost of impoundment by the owner from the driver of the vehicle.
Given the evidence on in this matter, the Tribunal finds that the Applicant does not meet the standard of section 50.2(3)(c) 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 Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: March 8, 2013