9083 v. Registrar of Motor Vehicles, 2014 CanLII 61059

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

DATE: 2014-09-29

FILE: 9083/MVIA

CASE NAME: 9083 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 -and- Registrar of Motor Vehicles, Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard in Toronto: September 17, 2014

REASONS FOR DECISION

A hearing was held on September 17, 2014, to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”) with reasons to follow.

Pursuant to section 50.2 (5), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result the Appellant’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 Appellant

Motor Vehicle: 2004 FORD F15 (the “vehicle”)

Date of Appeal: August 25, 2014

By way of preliminary matters, the Appellant’s Interpreter was sworn.

The Tribunal then recessed for a period of fifteen minutes to allow the Appellant to review the Registrar’s disclosure package, which had not been received by the Appellant.

All other documents were entered into evidence as exhibits with the consent of both parties.

In his rebuttal statement at the end of the hearing on September 17, 2014, the Appellant stated that he had seen the suspended driver’s licence in his wallet approximately two weeks before he allowed the suspended driver to drive his truck. A discussion ensued as to the actual date of reinstatement, whether it was the 6th of June as submitted by the Appellant or the 19th of August as per Ministry’s submissions.

At this stage the Tribunal felt that in all fairness it would be appropriate to allow both parties to submit further documentary support for their statements with respect to reinstatement date..

On September 19, 2014, the Appellant submitted a document showing application for reinstatement to the Ministry, on June 6, 2014 and payment of the required fee. This payment was made by the suspended driver. However, the document is not evidence of the licence reinstatement on that date.

The Ministry submitted documents which confirmed that the licence of the suspended driver was not reinstated until August 19, 2014 and further that upon reinstatement, the vehicle he drives must be equipped with an approved ignition interlock device.

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, all 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 Appellant

A summary of the Appellant’s evidence follows.

The Appellant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Appellant states that he had no idea the person he allowed to drive the vehicle did not have a valid driver’s licence. The Appellant believes that he exercised due diligence as he was aware of the suspension and the conditions for reinstatement. According to the Appellant the six months suspension had elapsed and he believed the licence to have been restored. Further, he was told by the suspended driver that a new licence had been issued.

During the hearing, the Appellant stated that he saw the suspended driver driving and assumed that he had a valid licence.

In cross-examination, the Appellant testified that he did nothing to ascertain the validity of the licence.

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 Appellant 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 Appellant 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 August 19, 2014.

The Respondent 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:

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 Appellant 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 Appellant stated that he has ongoing projects and needs the truck to carry on business.

The Registrar’s Agent maintains that there is no doubt the driver was under suspension.

With regard to exceptional hardship, the Registrar’s Agent noted that, according to the Registrar’s documents submitted,, the Appellant has two alternate commercial vehicles available, thus the Tribunal is precluded from looking into exceptional hardship.

With respect to due diligence, the Registrar’s Agent maintained that the Appellant allowed the suspended driver to take control of the vehicle without verifying the validity of his driver’s licence, thus due diligence was not exercised.

The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3) of the Act.

After reviewing the evidence submitted by both parties, the Tribunal notes that the document provided by the Appellant contains what appears to be incomplete information and indicates that a fee for “reinstatement” had been paid on June the 6th. However, there is neither concrete proof of reinstatement nor a copy of a valid driver’s licence.

Thus, the Tribunal concurs with the Registrar’s Agent that the evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.

The Appellant appealed on the grounds of due diligence, yet he admitted to giving care and control of his vehicle to the suspended driver simply on his word that he had a valid driver’s licence. Although, the Tribunal is not of the mind that contacting the Ministry is essential for verification, it is incumbent upon an owner to at least examine the licence of the person allowed to drive the vehicle. Thus, the Tribunal finds that the ground of due diligence under section 50.2(3)(c) is not met, thus the appeal must fail.

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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Member

RELEASED: September 29, 2014