Licence Appeal Tribunal
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.
FILE: 10505/MVIA
CASE NAME: 10505 v. Registrar of Motor Vehicles
Naga Auto Cooperation Inc. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: November 9, 2016
REASONS FOR DECISION
Introduction
This is an appeal by the Appellant company from the impoundment of its vehicle on October 16, 2016, after Mr. N was stopped by the police when driving this vehicle. Mr. L owns the Appellant company and he let Mr. N drive the vehicle late one night on their way home. Unknown to Mr. L at that time, Mr. N’s driver’s licence had been suspended until March 8, 2017, for a conviction for driving with excess blood/alcohol levels.
The two issues in this appeal are whether Mr. L exercised “due diligence” in attempting to check the status of the suspended driver’s licence, and whether the impoundment has caused “exceptional hardship” as defined in the legislation. For the reasons below, the Tribunal finds that the Mr. L exercised due diligence, and the Tribunal SETS ASIDE THE IMPOUNDMENT, and orders that the vehicle be released.
DUE DILIGENCE – Did Mr. L show “due diligence” when he inspected Mr. N’s driver’s licence?
The Appellant’s Notice of Appeal simply states a need to get the car back in order to run the business, but it became clear at the beginning of the hearing that the issue of due diligence should also be considered, and submissions made by both parties in light of Mr. L’s testimony.
The Tribunal finds that the circumstances of this case showed that Mr. L showed due diligence by asking Mr. N if his licence was “good”, then seeing it and checking the expiry date. The requirement for due diligence in this case did not require Mr. L to contact the Ministry of Transportation, as suggested by the Registrar’s Agent, to verify that the licence had not been suspended.
Law – what is “due diligence”?
Section 55.1 of the Highway Traffic Act (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. On the appeal, the Tribunal may, under section 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Under section 50.2(8), the decision of the Tribunal is, final and binding.
The burden of proof is on the Appellant to satisfy the Tribunal that at least one of the following four grounds of appeal has been proven on a balance of probabilities, as set out in section 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 legislation does not define “due diligence” in section 50.2(3)(c) above. The dictionary definitions of “due diligence” refer to words and concepts such as what was proper or what ought to be; or being careful. Black’s Law Dictionary refers to what is properly to be expected from a reasonable and prudent person under the particular circumstances. There is no absolute standard, but the required actions depend upon the particular circumstances, and an assessment of what a reasonable and cautious person would do under those circumstances.
The objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This will help to promote more safety on the roads.
Facts and Analysis – was there due diligence even though Mr. L did not contact the Ministry service for checking if Mr. N’s driver’s licence was suspended?
The Appellant company is the registered owner of the vehicle, but it is basically Mr. L’s one-person business of buying and selling vehicles. Mr. L testified about what happened when his vehicle was impounded at about 4 a.m. on October 16, 2016. He had gone to a birthday party of a friend’s grandson, in a town about an hour and a half outside of the big city where Mr. L lives. When he was leaving late that night, he was very tired and it was very dark. Mr. L asked Mr. N to drive his vehicle for about 30 minutes until they got to the highway, when Mr. L would take over for the rest of the drive home. Mr. L had known Mr. N for about a year; he was a friend of a close friend, and Mr. L sometimes asked Mr. N to help him out in his business.
Mr. L testified that he asked Mr. N if his licence was “good”, and Mr. N said that it was. Mr. L also examined Mr. N’s driver’s licence and saw that it was “not fake” and that the expiry date was in 2020. The Registrar’s Agent confirmed that the Ministry records showed that Mr. N’s licence indeed had an expiry date of November 4, 2020. Mr. L did not know at that time that Mr. N’s licence was suspended. The vehicle was stopped by police when Mr. N was driving that night, and it was impounded for 45 days.
In questioning by the Tribunal and by the Registrar’s Agent, Mr. L said that he did not know at that time that he could use a Ministry of Transportation telephone service to check if the licence was under suspension. He also said he would not have thought any government service would be open at that time of night.
Mr. L also said that he had never let Mr. N drive his vehicle before. He said nobody drives his car, which is a 2015 BMW; only he uses it.
The Registrar’s Agent submitted that the Appellant did not exercise due diligence because he should have used the 24-hour Ministry telephone service to check that Mr. N’s licence was not suspended. That appeared to be the only additional action that the Appellant did not take that he could or should have taken, to avoid the situation of having a suspended driver drive his car.
The Tribunal found Mr. L to be a credible witness. There was no dispute about the truth of what he said. The facts of this case support a finding that Mr. L was being careful in recognizing that it was very late and he was very tired, and it would be safer if someone else drove until they reached the main highway and Mr. L could take over the driving. The Tribunal finds that this shows that Mr. L was being careful when asking his friend to drive his car. This prudent action continued when Mr. L asked his friend about his driver’s licence before allowing Mr. N to drive. Mr. L then actually inspected Mr. N’s driver’s licence and even checked its expiry date.
The Tribunal finds that it is not reasonable to expect that a vehicle owner in this situation should, after checking the other person’s licence, take the time and extra step to then phone the Ministry’s telephone service or use their Internet service to check the actual status of the driver’s licence, when all indications are that the licence is valid. Furthermore, Mr. L did not know about this service, and that is not surprising. Even if he did know or ought to have known, there did not appear to be any reason to be suspicious about the status of Mr. N’s licence. If there were such reasons, such as knowledge about a past history of driving-related problems, then the vehicle owner would have to do some further investigation, such as asking more questions or checking with the Ministry.
The Tribunal finds that Mr. L’s actions in this case show that he exercised due diligence in attempting to determine that Mr. N’s driver’s licence was not under suspension.
Exceptional Hardship
The Appellant succeeds in its appeal on the basis of due diligence, and the Tribunal does not have to consider the other possible ground of exceptional hardship. But the Tribunal notes that it would find that the Appellant’s situation does not meet the detailed definition of “exceptional hardship” set out in the Regulation. There are reasonable alternatives to the vehicle that was impounded, and there is no loss that is “immediate, significant and lasting,” as required by the law.
Mr. L has been able to borrow a vehicle from friends and relatives for the past few weeks, and he rented a vehicle twice. He does need a vehicle to drive long distances many times each week when he has to go look at used cars that he buys and then sells overseas. He said that he expects more trouble trying to borrow a car after this week, but this was not enough evidence that he cannot continue to find reasonable alternatives. In any event, even if the Appellant could show that there are no reasonable alternatives to the impounded vehicle, it would be very difficult for the Appellant to show that any financial or other loss in this situation would be “immediate, significant and lasting.”
DECISION
Under the authority of section 50.2(5) of the Act, the Tribunal orders the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair
RELEASED: November 10, 2016