Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8722/MVIA
CASE NAME: 8722 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: Sanjay Kapur, Agent
Heard by teleconference: April 16, 2014
REASONS FOR DECISION
A hearing was held on April 16, 2014, by teleconference 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”).
Pursuant to section 50.2 (5) the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE with reasons to follow.
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: 2003 BUIC RZV (the “vehicle”)
Date of Appeal: March 31, 2014
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #1), the owner appeals on the basis that she, as the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended as provided in sections 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. In the Notice of Appeal, the Applicant states that she paid the outstanding fines against the suspended driver and was told that there were no further issues with the licence. The Applicant needs the vehicle for work as she must travel across Ontario. Further, the Applicant noted the number of the Ministry of Transportation (MTO) she called as 1 800-303 4993, at which time she spoke to someone named Roberta.
During the hearing, the Applicant testified, under oath, that she would never have let the suspended driver take the car had she known he was suspended. According to the Applicant, she paid all Court fines, and was told that his licence was not suspended.
In cross-examination, the Applicant testified that she owns other vehicles.
The Applicant reiterated her evidence in the Notice of Appeal confirming that she called the MTO at the end of March and was told by someone named Roberta that there were no suspensions against the driver.
The Registrar’s Agent questioned the Applicant as to whether she had followed the prompts given on line; the Applicant affirmed that she had by-passed the prompts and spoken to an operator.
The Registrar’s Agent pointed out the suspended driver’s licence had actually expired in April 2013. The Applicant attested to the fact that she had not been told by the MTO anything about his licence having expired.
The Registrar’s Agent asked the Applicant if “hypothetically” she had requested the suspended driver to show her his licence would he have been able to do so. The Applicant replied: “I do not know.”
By way of clarification, the Tribunal asked the Applicant to recount what transpired when she went to the Court to pay the fines. The Applicant testified that she specifically asked whether there were any “disqualifications or suspensions” against that licence, and was told that there were none.
Further, the Applicant confirmed that when she spoke to Roberta she gave her the suspended driver’s licence number and was again told that there were no suspensions against the driver.
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 MTO 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 MTO records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 2014.
The Registrar did not call any witnesses.
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 grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
In closing, the Applicant stated that she has no idea how the system works but will be a lot smarter next time.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
With respect to due diligence, the Registrar’s Agent maintains that although the Applicant claims to have contacted the courts to ascertain the validity of the suspended driver’s licence, there is no documentary evidence to prove this contention. The second part of the argument with respect to due diligence, according to the Registrar’s Agent, was for the Applicant to have actually asked the driver to show his licence which, the Applicant failed to do. The Registrar’s Agent argued that had the Applicant simply asked to see the licence, she could have avoided all these problems. Lastly, the Registrar’s Agent submitted that had the suspended driver been able to have produced a licence, it would have shown that it had expired in April of 2013.
The Registrar’s Agent confirmed that had the Applicant actually called the number she noted, and followed the prompts she would have received confirmation of the call. As it is, according to the Registrar’s Agent, the Applicant’s evidence “should be taken with a grain of salt”.
As far as the Applicant’s conversation with other departments, those were not the proper channels to follow, according to the Registrar’s Agent, and do not constitute due diligence.
Prior to setting out the reasons for decision, the Tribunal addressed the Registrar’s Agent’s request to note on record that he asked the Tribunal to be allowed to call the MTO number provided by the Applicant, to prove how the system worked.
The Tribunal saw no point in calling the number as it would neither prove nor disprove the Applicant’s testimony that she by-passed the prompts.
The onus is on the Applicant to establish her grounds of appeal as provided in section 50.2(3) of the Act.
With respect to the issue of due diligence, the Registrar’s Agent challenged the veracity of the Applicant’s testimony arguing that there is no documentary evidence to confirm her statements. The Tribunal found the Applicant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness thus, accepts her testimony.
Although the Registrar’s Agent did not dispute that the number called by the Applicant was the MTO’s number, he maintains that by not following the prompts she did not obtain the right information. Further, the Registrar’s Agent contends, that since the Courts were not the proper channels to follow, in ascertaining the validity of a driver’s licence, the Applicant’s efforts do not constitute due diligence.
The Tribunal disagrees on both counts.
It is completely plausible that the Applicant would have preferred to speak to an individual rather than go through the automated ‘prompts’ to obtain the information. In fact, the Applicant was sufficiently diligent to record not only the number but also the name of the person to whom she spoke. As for the second part of the Registrar’s argument, the Tribunal recognizes that not everyone is well versed on the responsibilities and procedures of the bureaucracy. The Tribunal commends the Applicant for her efforts. Evidence shows that she did not rely on the suspended driver to prove he had a valid driver’s licence, she did everything she could to find out for herself. Further, she received information to the effect that the driver’s licence was no longer under suspension, from sources which a reasonable person would conclude were reliable.
Given the fact that the Applicant took it upon herself to contact the various authorities on at least two or three occasions, all at different times, the Tribunal finds that the Applicant exercised due diligence. Thus the Tribunal finds that the criteria for due diligence under sections 50.2(3)(c) has 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 orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
Released: April 25, 2014