Enterprise Rent-a-Car Canada Company v. Registrar of Motor Vehicles, 2015 CanLII 89158

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2015-11-16

FILE: 9849/MVIA

CASE NAME: 9849 v. Registrar of Motor Vehicles

An 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

Enterprise Rent-a-Car Canada Company Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant: Tom Jakeway, Agent

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: November 10, 2015

REASONS FOR DECISION AND ORDER

1A hearing was held on November 10, 2015 by teleconference to consider the appeal Enterprise Rent-a-Car Canada Company (the “Appellant”) pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will remain detained at the impound facility until the conclusion of the 180 day impoundment period.

BACKGROUND

3A 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: 2016 KIA FLX (the “vehicle”)

Date of Appeal: October 21, 2015

ISSUE

4The sole issue before the Tribunal is: did the Appellant’s staff exercise 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.

5On consent all of the documents filed by the Registrar were admitted into evidence as Exhibit 3 for the truth of their contents.

FACTS

6The Appellant is a large car rental company renting thousands of cars each day. In or around October 11, 2015 they rented a vehicle to the suspended driver from its Montreal Airport location. The driver was stopped by police in Ontario later that day and the vehicle was impounded. The suspended driver was serving a suspension pursuant to s. 259(4) of the Criminal Code for driving while suspended for the offence of street racing. The street racing suspension has now expired but the s. 259(4) suspension is still in effect.

7At the rental location the driver showed what appeared to be a valid driver’s licence with a photo included. According to the evidence of Mr. Jakeway on behalf of the Appellant, the licence details entered into the Appellant’s computer system indicated an Ontario driver’s licence # XXXXX-XXXX8-11628 with an expiry date of September 17, 2018. The number is significant as will be shown later.

8The Appellant has had vehicles impounded under these provisions in the past two years. It is aware of the existence of an Ontario Ministry of Transportation telephone line which can be used to determine the validity of an Ontario driver’s licence. It is the Appellant’s policy not to use this service, feeling that it will significantly increase wait times at the rental counter. Rather, it requires renters to produce a valid driver’s licence and one or two other pieces of identification, at least one of which must be a valid credit card. Mr. Jakeway was unaware that there is also a Ministry website for checking driver’s licences but his objection to using it remained the same as the telephone number despite that knowledge.

9On cross-examination, it was pointed out to Mr. Jakeway that, according to the Registrar’s records, the last six digits of the suspended driver’s licence were not 811628 but 810428. It was a licence with this number that was shown to the police officer when the suspended driver was stopped. Mr. Jakeway conceded that it is generally known that the last six digits of an Ontario driver’s licence are the date of birth of the holder. In this case, the suspended driver was born on 28th of April 1981, i.e. 810428. This makes the last six numbers of the licence allegedly shown at the Montreal Airport, 811628, nonsense as there are not 16 months in a year. His explanation was that either the data was entered incorrectly or the suspended driver showed a doctored licence.

ANALYSIS

10Section 55.1 of the Act sets out the authority of a police officer to impound a vehicle driven by a suspended driver:

55.1 (1) Where a police officer or officer appointed for carrying out the provisions of this Act is satisfied that a person was driving a motor vehicle on a highway while his or her driver’s licence is under suspension under section 41, 42 or 43 even if it is under suspension at the same time for any other reason, the officer shall detain the motor vehicle that was being driven by the person whose driver’s licence is under suspension.

11S, 50.2 provides for an appeal of an impoundment to this Tribunal and sets out the grounds for appeal and the powers of the Tribunal:

50.2 (1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.

(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.

(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.

(5) The Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

12As stated above, the only ground for appeal on the current facts is under s. 50.2(3)(c), that the Appellant exercised due diligence. Due diligence is not an absolute standard. It requires the exercise of such reasonable prudence necessary to determine the true facts prior to embarking on a course of action, in this case the rental of a vehicle to a complete stranger. One element of what might constitute reasonable prudence contemplates knowledge of the services that are available to confirm facts. While this Tribunal has been concerned in the past with the lack of advertisement of the telephone number or web service to check the validity of licences, on the current facts, the Appellant was aware of the telephone service but chose not to use it. It made a policy choice to ignore a valuable tool because of it might make the rental process longer.

13Also of concern to the Tribunal is the failure of the Appellant’s staff to do anything more than take a cursory look at the suspended driver’s licence. Given the discrepancy in the last six digits, it was apparent that the licence shown could not have been valid. Mr. Jakeway asserted that the rental agent may have mis-keyed the last six digits. Given the overall similarity of the numbers to the actual numbers, and the fact that the agent would be looking at the licence while entering the data, the Tribunal is of the view that entering the data incorrectly is unlikely. It is more likely than not that the licence shown by the renter was a doctored licence which was relatively easy to detect by recognizing the impossibility of the six numbers, 811628.

14Having considered all of the evidence and submissions of the Parties, the Tribunal finds that the Appellant has failed to make out a defence of due diligence. The Appellant’s staff failed to examine the licence proffered by the suspended driver in anything more than a cursory manner. The Appellant also failed to make use of a ready tool of which it was aware to confirm the validity of the licence in question. Either of these failures indicates that the Appellant failed to exercise reasonable prudence to ascertain the facts before entering into the rental agreement.

ORDER

15The Tribunal confirms the impoundment of the vehicle and it will remain in the impoundment facility for the balance of the 180 day impoundment period.