Licence Appeal Tribunal / Tribunal d'appel en matière de permis
File: 78584/MVIA
Case Name: 7854 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.
7854 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: Russell McKnight, Agent
Heard by teleconference: January 31, 2013
REASONS FOR DECISION
A hearing was held on January 31, 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 ORDERED THE REGISTRAR TO RELEASE THE MOTOR 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. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 1999 DODG RAM (the “vehicle”)
Date of Appeal: January 14, 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 pleads for the return of his vehicle as he was informed that he would be able to drive to and from work. A copy of the Probation Order received by the Tribunal on January 25th, 2013 confirms the order made by Justice Graydon on December 12, 2012 allowing the Applicant to drive for work purposes. Specifically, at that court appearance, the Applicant was found guilty of a Criminal Code offence, s.249(1)(a), dangerous driving. He was given a conditional discharge, one of the conditions being that ‘for the next 9 months of the probation order you are only able to operate a motor vehicle while driving directly to and from work and during the course of employment’ and to and from his probation appointment.
At the hearing, the Applicant testified that he exercised due diligence in that he called the Courthouse to obtain clarification of the Probation Order. According to the Applicant, he was informed that as per the terms of the Court Order, he was entitled to drive.
The Applicant asserted that he was convinced he was able to drive.
In cross-examination, the Applicant confirmed that he was assured by the Judge, his lawyer and the Probation Officer that he would be able to operate a motor vehicle to and from work.
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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 23, 2013.
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 maintained that he was always under the impression that the Court ruling had supremacy, and at the time he was assured by the Judge he would be able to drive. The Applicant asserted that had known that his licence was under suspension he would not have operated his motor vehicle
The Registrar’s Agent, in his summary remarks, argued that the Judge was dealing with the Criminal Code of Canada and not with the Highway Traffic Act, and it was not up to the Judge to offer advice on the Highway Traffic Act; thus the suspension is valid and the impoundment was done properly.
According to the Registrar’s Agent, the Applicant has not proven that his case. The Registrar’s Agent emphasized that the Applicant cannot use the ground of due diligence after he has been notified of the suspension. Further, the Registrar’s Agent maintains that the Applicant listened to the Judge and his lawyer, among others,, but did not pay attention to the information from the Ministry that informed him of the suspension. Had the Applicant gone to any MTO office and to ask for a reinstatement of his licence, he would have been told he was suspended for one year
The Tribunal heard evidence with respect to the ground for appeal under due diligence; section 50.2(3)(c) of the Act prescribes:
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s license of the driver of the motor vehicle at the time in respect of which the order was made was not then 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 Registrar’s Agent suggests that the Applicant should have not listened to the Judge, the Justice of the Peace, or to his own lawyer but should have known that once a conviction is registered, the licence is automatically suspended.
The Tribunal does not accept the Registrar’s position on this issue.
Having attended the Court at which he was found guilty of dangerous driving and being told, as evidenced by the Probation Order submitted by the Applicant, that by order of the Justice Graydon he was permitted to drive for certain prescribed purposes (and there is no evidence before the Tribunal that the Applicant was driving at a time not permitted by that order), and then confirming this with legal counsel, the Tribunal concludes that the Applicant did, indeed, exercise due diligence
The Tribunal accepts the Applicant’s position, that having been told by a Judge that he can drive to and from work, he would have no reason to believe that the Judge’s Order could be overridden by the Ministry. The Applicant in these circumstances acted prudently and with caution, therefore, with the degree of diligence that would be exercised by a reasonable person faced with a situation such as his.. In fact , it is reasonable to conclude that at the time the vehicle was detained in order to be impounded, the licence was not then under suspension, and such might be the conclusion should a similar occurrence come to pass during the period of this Probation Order.
Thus, given the evidence, the Tribunal finds that the criteria of section 50.2 (3)(c) have been met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms its order that the Registrar release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: February 8, 2013