Licence Appeal Tribunal
FILE: 8153/MVIA
CASE NAME: 8153 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: Simon Dann, Member
APPEARANCES:
For the Applicant: Self-Represented
For the Respondent: Jay Shanmorgan, Agent
Heard in Toronto: July 9, 2013
REASONS FOR DECISION
A hearing was held on April 10 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 order the Registrar to release the vehicle pursuant to section 55.1(3) of the HTA.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner on the ground of due diligence. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2007, CADI, ESC (the vehicle”)
Date of Appeal: June 17, 2013
ISSUES
As set out in the Applicant’s Notice of Appeal, 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:
(a) the Applicant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time in which the vehicle was impounded was not then under suspension.
Evidence for the Applicant
The Applicant described herself as the owner of two businesses - one being a retail business and the other being a law office. She is a licensed paralegal and is very familiar with the Highway Traffic Act (“HTA”) and the regulations because of the client work she does through her paralegal business. The Applicant stated she also has a traffic agent in her office.
The Applicant testified she loaned her vehicle to her boy-friend for a weekend trip with several of his friends in early June 2013. She was not on that trip.
She stated she had no way of knowing the vehicle had been given to another person to drive and it was clear in her mind that her boyfriend was to be the only driver and she knew he had a valid driver’s licence.
The Applicant was very clear in stating that she only loaned her vehicle to her boyfriend for his own use and he was not authorized to allow anyone else to drive the vehicle.
Due to her work as a paralegal and with clients who have driver licence issues, she fully understands the necessity of ensuring the driver of a vehicle is properly licensed and took steps to ensure that her boyfriend had a valid driver’s licence.
The Applicant said she is even able to instantly check the status of a person’s driver’s licence through her mobile phone and would have done so if she had been in the vehicle at the time it was turned over to the driver who was at the wheel when it was impounded.
In cross-examination, the Applicant was asked if she had completed the Notice of Appeal as the handwritten explanation was signed by someone else and referred to the difficulties she was experiencing from the loss of use the vehicle.
The Applicant explained that it had been completed by her boyfriend and she did not have a copy of what had been sent in to the Tribunal.
The witness RR is the Applicant’s boyfriend and he confirmed that he was supposed to be the only driver of the vehicle. He had not been given permission to allow anyone else to drive.
RR testified that he and his friends were returning to Toronto and as it was late night and he was tired, he had asked if anyone else in the vehicle was able to drive.
When his friend “MA” spoke up and offered to drive, RR testified that he (RR) asked his friend if he had a valid driver’s licence. RR stated he did see MA’s licence before turning the vehicle over to him.
RR said that when the police officer stopped the vehicle, checked MA’s driver’s licence, and advised that it was suspended, he asked the police officer how MA still had his licence document if it was suspended. RR said he received no reply.
RR confirmed the Applicant did not know there would be any other drivers.
The witness MA confirmed he was the driver of the Applicant’s vehicle at the time it was impounded. He stated the police officer asked him for his driver’s licence and then advised him it was suspended.
MA testified that because he still had his driver’s licence at the time of the impoundment, he was not aware of any restrictions on it. He confirmed that RR had asked him numerous times if his licence was valid and if he was okay to drive.
MA confirmed he only met the Applicant before leaving on the trip and she did not give him an ‘ok’ to drive her vehicle. He understood that driving the vehicle was exclusive to RR, her boy-friend.
In cross-examination, MA confirmed he and RR had prepared the Notice of Appeal for the Applicant on their own, and then sent it in on her behalf. He confirmed it was his signature below the handwritten reasons for the appeal and the Applicant did not see it.
When asked about his earlier court appearance regarding the conviction leading to the licence suspension, MA confirmed that had not been asked to turn in his driver’s licence. His lawyer had also not said anything to him.
MA acknowledged his fault in causing the Applicant’s loss of use of her vehicle and that he was prepared to reimburse her for the costs if she asked.
Evidence for the Registrar.
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 an offence under the Criminal Code of Canada;
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 previously convicted under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 25, 2014.
The Registrar called no other evidence.
Closing Submissions
The Applicant summarized her testimony that only her bo-friend (RR) had permission to drive the vehicle. She is fully familiar with the law and submitted that she would not have allowed anyone else to drive.
The Applicant submitted that the Tribunal heard testimony that RR had asked MA several times if he had a valid driver’s licence and considering the circumstances, at the time of the impoundment, it would have been difficult to do a background check.
In summary, the Registrar’s agent, Mr. Shanmorgan, submitted the Tribunal had evidence that MA was disqualified from driving based on his conviction under the Criminal Code and that there had been no discussion of checks on the status of MA’s driver’s licence.
Mr. Shanmorgan asked for the impoundment to be confirmed.
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).
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.
All elements of the ground of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
The onus is on the Applicant to establish the ground of appeal as provided in section 50.2(3)(c) of the Act.
In arriving at a decision, the Tribunal accepted the testimony of the Applicant and her witnesses regarding the following facts:
The Applicant presented herself as a licenced paralegal working with clients who have driving and HTA issues and, as this was undisputed, the Tribunal further accepts the Applicant’s claim that she is knowledgeable of the HTA and the related regulations.
The Tribunal finds the Applicant is specifically knowledgeable with regard to ensuring that any driver of her vehicle must have a valid driver’s licence and that:
- the Applicant loaned her vehicle to her boy-friend on the basis of her knowledge that he had a valid driver’s licence;
- the Applicant expressed to her boy-friend that he was to be the only driver of the vehicle and that she did not give him permission to allow anyone else to drive it;
- the Applicant’s boy-friend stated he asked MA if he had a valid driver’s licence and if he could see it before allowing him to drive;
- MA showed RR his driver’s licenceand confirmed to RR that the licence was valid;
- considering the circumstances at the time of the impoundment (the Applicant’s boy-friend, RR, and the driver, MA, were travelling along the highway late at night), the Tribunal accepts that RR took appropriate steps to confirm for himself that MA had a valid driver’s licence;
The Applicant said she did not know about MA’s licence suspension and, in any event, she was not then in a position to check MA’s licence due to the particular circumstances by which he came to drive her vehicle.
The Applicant had however, taken appropriate steps by confirming the status of her boy-friend’s licence and impressing upon him that she was only giving him permission to drive the vehicle.
Therefore, and on a balance of probabilities, the Tribunal finds that the Applicant does meet the standard of section 50.2(3)(c) of the Act, for due diligence.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the Applicant’s motor vehicle and orders the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: July 11, 2013