8890 v. Registrar of Motor Vehicles, 2014 CanLII 36470

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-07-08

FILE: 8890/MVIA

CASE NAME: 8890 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.

Appellant

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Nives Montano, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: June 27, 2014

REASONS FOR DECISION

A hearing was held on June 27, 2014, at Toronto, Ontario, by teleconference, to consider the this 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 ORDERS the Registrar to release the vehicle from impoundment.

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 Appellant

Motor Vehicle: 1999 Ford CSS (the “vehicle”)

Date of Appeal: June 9, 2014

ISSUES

As set out in the Appellant’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 Appellant

A summary of the Appellant’s affirmed evidence follows.

The Appellant is married with two children. He is employed as a supervisor in a gold mine in northern Ontario.

The Appellant’s two brothers and father all live within 10-20 minutes away from the Appellant. The Appellant’s father was the suspended driver at the time the vehicle was impounded.

Three vehicles are owned by the Appellant; one of which is the impounded vehicle and unbeknownst to the Appellant was still registered in his name.

Approximately one year ago, the Appellant’s father was charged with a Criminal Code conviction with having a blood/alcohol content in excess of .08 ml; had his vehicle impounded and driver’s licence suspended for one year. Shortly thereafter, the Appellant’s father lied to the Appellant by telling him that his vehicle was no longer roadworthy in an effort to hide the fact that he was a disqualified driver and that his vehicle was impounded. Since the suspended driver could not afford to pay for the release of his vehicle from impoundment, a friend of his paid the costs associated with the impoundment and kept the vehicle.

Prior to the Appellant’s father’s suspension a year ago, the Appellant had given an older vehicle, which he was not using, to a friend. After hearing that his father’s vehicle was no longer ‘fit for the road’, the Appellant retrieved the vehicle he had given to his friend, which his friend was not using, had the ownership papers reissued since the originals were lost and gave the vehicle to his father for his own personal use. The Appellant handed the keys to his father; instructed him to transfer the ownership into his name; have the vehicle certified and have insurance placed on it. None of the foregoing was done because the Appellant’s father was a suspended driver.

According to the Appellant, on the day the vehicle was impounded, police were performing random spot checks. The Appellant’s father was stopped for not having current licence plate stickers on the vehicle. He was not able to produce a valid driver’s licence; ownership or proof of insurance. He was handcuffed and driven to the Appellant’s brother’s home. The vehicle was impounded.

Five days after the vehicle was impounded, the Appellant received a call from his father wherein he finally confessed to the Appellant about his past and what had transpired with the impounded vehicle; the truth was finally revealed.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. 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 until May 29, 2014.

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:

1. 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.

2. 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.

3. 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

The Appellant was honest and forthright in his testimony. The Appellant presented himself as a responsible individual, who, on the evidence before the Tribunal would not in all likelihood have given his vehicle to his father had he known of his suspended licence.

The Respondent’s Agent submitted that the requirement of due diligence meant that the Appellant should have asked to see his father’s driver’s licence or call the Ministry of Transportation to verify the validity of his driver’s licence. The foregoing actions depend on each individual situation and must take into consideration what a reasonable and prudent person would do. The use of the term ‘due diligence’ supports the view that there is no absolute standard.

The Appellant specifically instructed his father, the suspended driver, what actions were to be taken to transfer the impounded vehicle into his father’s name over a year ago. The Appellant’s father has had the impounded vehicle in his possession for the past year, from the Appellant’s perspective, his father was the de facto owner of it, if not the registered owner.

As a caring son and in an effort to help his father, the Appellant gave his father one of his vehicles. The Appellant did not think he had to ensure that his father was a qualified driver because he was his father and there was no indicator of a possible suspension. The thought of challenging its validity didn’t come to mind especially since in this instance, it was within the family. The Appellant is disappointed that his father lied to him and actively misled him. If his father was not stopped by police three days before his driver’s licence was reinstated, the Appellant would never have known the truth.

The Appellant recently received correspondence from the Ministry of Transportation regarding his licence plate renewal stickers for two of his three vehicles. There was no reference to or other correspondence received from MTO regarding the renewal of the licence plate stickers for the impounded vehicle. From this, the Appellant reasonably inferred that the ownership of the impounded vehicle had been transferred, as he had instructed his father to do.

Under the foregoing circumstances, there were no indicators to prompt the Appellant to bring anything into question. Because of the Appellant’s father’s well-orchestrated lie, the Tribunal finds it unreasonable for the Appellant, who believed he was giving his vehicle to a trustworthy family member, to have taken any action to verify the validity of his father’s driver’s licence. Some situations may require such steps to be taken, but ‘due diligence’ does not require such investigative action in every single situation when an owner gives his vehicle to someone else to drive. Each case has to be decided on its own unique facts.

DECISION

After considering the evidence and the law, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Respondent to release the vehicle.

LICENCE APPEAL TRIBUNAL

Nives Montano, Presiding Member

RELEASED: July 8, 2014