Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-03-24
FILE:
9417/MVIA
CASE NAME:
9417 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:
Geneviève Blais, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
March 19, 2015
REASONS FOR DECISION
A hearing was held on March 19, 2015, by teleconference, 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 Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the HTA. 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: 2006, FORD, F/E (the “vehicle”)
Date of Appeal: February 24, 2015
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 evidence follows:
At the hearing, the Appellant reiterated her reasons for appeal as stated in the Notice of Appeal. She stated that the suspended driver was a friend from high school. She had lost contact with him for more than 20 years. In late 2014, they reconnected and began dating. She had witnessed the suspended driver driving a vehicle when he visited her at home. Approximately four months ago, he had shown her an employee card that identified him as an operator. As he worked as a heavy equipment operator/driver, she had assumed he had a valid driver’s licence. She allowed him to borrow her vehicle on one previous occasion.
On the day the vehicle was impounded, the Appellant had an appointment and the suspended driver accompanied her. While she waited for her appointment, she asked him to get her a coffee and allowed him to use the vehicle. When she was contacted about the impoundment she was taken aback. She was unaware that his licence was suspended. She felt betrayed and upset with the occurrence. She trusted the suspended driver and had never thought of asking him for proof of a valid licence. She plans to be more cautious in the future.
The Appellant resides in an urban community. Since the impoundment, although more difficult, she has managed without a vehicle. She has been able to walk to her employment and has attended to her family’s daily needs. She has received an apology from the suspended driver who is prepared to help her pay for the impoundment fees. He told the Appellant he felt too embarrassed to tell her about his past driving convictions which occurred more than 10 years ago. He was in the process of applying for a reinstatement of his 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:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant and the driver at the time of the impoundment, as owners;
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 on December 2, 2003 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 suspended for life.
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 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
The Agent for the Registrar stated that the Appellant failed to prove that due diligence was exercised and requested the Tribunal confirm the impoundment.
The legislation requires an owner of the motor vehicle to make efforts to determine whether or not the licence of the person who is to drive the owner’s vehicle is valid. To rely on a defence of due diligence, an Appellant 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.
In each case, a finding of due diligence will depend largely on the specific circumstances. In her evidence, the Appellant stated she saw the suspended driver’s employee card that identified him as an operator. She assumed he had a valid licence because she saw him drive when he visited her home and he was an equipment operator at his work place. She took no further steps to validate her assumption and was deceived by him. The Appellant had just re-connected with the suspended driver in late 2014, after a period of over 20 years. The circumstances required her to do more than just presume he had a valid licence because she had seen him drive and seen his license as a heavy equipment operator. It was incumbent upon the Appellant to request and examine the licence of the suspended driver when she allowed him to drive the vehicle.
The Tribunal finds that the Appellant’s assumption that the suspended driver had a valid driver’s licence does not constitute due diligence. Thus, the Tribunal finds that the criteria prescribed under section 50.2(3)(c) of the Regulation has not been met.
Therefore, the appeal on the grounds of due diligence 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
Geneviève Blais, Member
Released: March 24, 2015