Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 9330/MVIA
CASE NAME: 9330 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
2064973 Ontario Inc. o/.a Dollar Thrifty Car Rental Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION
ADJUDICATOR: Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant: Steven Liborio, Agent
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: February 3, 2015
REASONS FOR DECISION
A hearing was held on February 3, 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 “Act”).
After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal ordered the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on February 4, 2015, with reasons to follow.
These are the reasons for the Tribunal’s Order.
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: 2013 HYUN AGG (the “vehicle”)
Date of Appeal: January 13, 2015
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), 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.
The Appellant is a corporation. The Appellant’s Agent completed the written submission filed with the Tribunal in support of the appeal, which, were entered as Exhibit #2. In the Notice of Appeal, the Appellant’s Agent maintains that the Appellant exercised due diligence. According to the Appellant’s Agent, the suspended driver: “has been renting the impounded vehicle since February 2014. At the time of rental he provided a valid Ontario driver’s licence. He has since paid his rental bill promptly every month. We do have a way of confirming each month that the customer’s licence is still valid and in good standing.”
The Appellant’s Agent testified that he has just recently found out about the Ministry’s website where a company can pay $2.00 to verify someone’s driver licence. According to the witness, this procedure is not only costly in the long run, but also very time consuming. Nonetheless, the witness agreed a check would be run on any suspicious individuals.
In cross-examination, the witness confirmed that the suspended driver has been a good customer and that he rents month to month, which means that he has to go to the office every month to pay the bill and each time he has to show his licence for the record. He had been a customer since approximately one year ago. The witness affirmed that he was not in the office and had no access to records to confirm the dates.
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 as owner;
A copy of the notice prepared by the police 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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation’s records indicating that the driver at the time of impoundment had been convicted of Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 11, 2015.
The Registrar 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:
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.
O. Reg. 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 (6th edition) 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 submissions, the Appellant’s Agent asserted that the company will attempt to figure out an economically viable plan to validate drivers’ licences prior to rental.
In her closing submissions, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintains that there is no doubt the driver was under suspension. The evidence shows that the driver’s licence of the person driving the vehicle at the time of the impoundment was suspended.
With respect to due diligence, the Registrar’s Agent noted that the suspended driver’s licence had been suspended and then reinstated in February of 2014. Thus the reason, the Registrar’s Agent explained she wanted the rental dates verified. Further, the Registrar’s Agent noted that the suspension that led to the impoundment occurred in September of 2014. According to the Registrar’s Agent, due diligence must be exercised at the time of the impoundment not before.
The onus is on the Appellant to establish the grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal found the Appellant’s Agent to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness.
The Appellant’s Agent testified that the company had the suspended driver’s licence on record and that, according to company policy, it must have been verified monthly as he renewed his rental agreement. The Tribunal accepts this testimony.
Due diligence, as defined, requires the Appellant to demonstrate that reasonable steps were taken to ensure that the individual had a valid driver’s licence prior to renting the vehicle to him. The issue is what was reasonable and prudent on these facts. Is it “reasonable” to expect that the Appellant shouldbe aware of the Ministry of Transportation policy regarding driver’s licence verification and that they should contact the Ministry of Transportation prior to allowing an individual to rent their vehicle? On these facts, the Tribunal‘s answer is “no”. Though this was a long term rental, the Appellant required the driver to attend monthly and confirm the rental with a valid driver’s licence. The Tribunal accepts the evidence that the Appellant, this instance, had in place a prudent method of licence verification by requiring staff to view the driver’s licence, on a monthly basis.. Thus, the Tribunal finds that the Appellant’s policy and practice did constitute due diligence.
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.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Presiding Member
Released: February 12, 2015