Licence Appeal Tribunal
FILE: 9419/MVIA
CASE NAME: 9419 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.
MPW Trading Inc. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicants: Vlad Denissov, Agent
For the Respondent: Julia Scorcia, Agent
Heard in Toronto: March 24, 2015
REASONS FOR DECISION
A hearing was held on March 24, 2015, at Toronto, Ontario, 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”). The Appellant's agent, who is also the owner of the Appellant corporation, was unable to attend in person due to a health issue and the hearing, on consent of the parties, proceeded with the Registrar's agent in person and the Appellant's agent by teleconference.
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 Appellant Motor Vehicle: 2005, Mini CPR (the “vehicle”) Date of Appeal: March 3, 2015
There were no preliminary matters in dispute between the parties.
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
The hearing in this matter was delayed as the Appellant did not appear at the scheduled time. When a Tribunal staff member finally reached the Appellant's agent, Vlad Denissov claimed that he had not received the information regarding the hearing date and that he was at home due to injuries experienced in an accident. Mr. Denissov agreed to attend the hearing by telephone and with the consent of the Registrar's agent, Ms. Scorcia, the hearing proceeded.
The reasons for the appeal, as noted in the Notice of Appeal, stated the vehicle had been "partially sold" to an individual ("NA") who, Mr. Denissov testified, had actually purchased the vehicle on a lease plan more than a year ago. He said he did not have the files with him and therefore could not give exact dates or details. The vehicle ownership document filed by the Respondent Ministry showed the Appellant company, MPW Trading Inc., as the Lessor and NA as the Lessee.
Mr. Denissov explained that he was the owner of MPW Trading, which he said was a used car dealer at the time of the sale or lease. He was also a registered vehicle salesperson. He subsequently sold the business but retained ownership of the MPW Trading corporation and the lease.
Mr. Denissov said that at the time of the sale (on a lease plan), the other person with NA was the individual IA and both let him know that on occasion or "in case of emergency" IA would also drive the vehicle. At that time, IA provided Mr. Denissov with a driver's licence and a copy was attached to the Notice of Appeal. That copy of the driver's licence showed an issue date of "2013/06/26" and expiry of "2018/03/13".
When the vehicle was impounded on February 18, 2015, it was IA who was driving it. Mr. Denissov did not know why the vehicle was in IA's possession at that time, but he said that NA had not made her monthly payments for about 5-6 months and she continually promised to catch up. When asked why he had not repossessed the vehicle, Mr. Denissov said he could not afford to hire a lawyer to get the vehicle back.
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 Appellant 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 driving with more than 80 MGS alcohol in blood under the Criminal Code of Canada, pursuant to which the driver’s licence of the driver was suspended on December 2, 2014 until December 2, 2015.
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
Regarding due diligence, the Tribunal refers to the Black’s Law dictionary definition of due diligence, with particular consideration of the terms “measure of prudence … ordinarily exercised by, a reasonable and prudent man under the particular circumstances [and] not measured by any absolute standard, but depending on the relative facts of the special case”.
The facts in this case are quite simple. The evidence given by the Appellant's agent, Mr. Denissov, is that more than a year ago, when he was a used car salesperson, he sold the vehicle to NA on a lease plan. Mr. Denissov testified that when he was at that time advised there would be another driver of the vehicle (IA), he took a copy of IA's driver's licence and it appeared to be a valid licence.
It would have been helpful if the Appellant’s Agent had been able to provide the sale or lease documents for this transaction. However, the Tribunal accepted that this transaction occurred more than a year ago, and since the business was subsequently sold, and Mr. Denissov was currently confined to his home because of an injury suffered in an accident, he was unable to access the file documents.
The Tribunal accepts the evidence that the Appellant’s Agent asked for and was shown an apparently valid driver’s licence of IA, issued on June 26, 2013, who presented herself as a potential driver of this vehicle, at the time of the sale under a lease plan. The Ministry’s records filed in this appeal show that IA’s licence may have been valid during this time period over a year ago, but she had received a three-month administrative driver’s licence suspension (ADLS) in May 2012. On December 2, 2014, she was convicted of driving with more than 80 mgs. alcohol, and her licence was suspended for one year.
The issue is whether the Appellant’s Agent was exercising due diligence when he accepted the photocopy of IA’s driver’s licence over a year ago, without further checking into the driver’s driving history or status, and whether the Appellant’s Agent should have regularly checked IA’s driving status afterwards.
In the specific circumstances of this case, the Tribunal finds that Mr. Denissov did his due diligence at the time of the partial sale or lease. He knew about this potential driver, and he properly asked for and received a copy of her driver’s licence.
He did not have any indicators of problems about the driver’s licence status of the lessee or this potential driver. It is unrealistic to expect that the lessor vehicle owner in these circumstances would be responsible for checking any further into the ongoing licence status of this potential driver or other potential drivers, when the vehicle was in the daily control and possession of the other registered owner, NA, who was the buyer and lessee. It is NA who would have had more of an ongoing responsibility to exercise due diligence.
Given the evidence presented in this matter, and in consideration of the specific circumstances, the Tribunal finds that on a balance of probabilities the Appellant (acting through its owner, Mr. Denissov) acted with due diligence and met the standard of section 50.2(3)(c) of the Act.
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 to the registered owner, MPW Trading Inc.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
RELEASED: April 1, 2015