Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-04-27
FILE:
10132/MVIA
CASE NAME:
10132 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:
Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle Biel and Sanjay Kapur, Agents
Heard by teleconference:
April 19, 2016
REASONS FOR DECISION
A hearing was held on April 19, 2016, 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: 1998 Oldsmobile (the “vehicle”)
Date of Appeal: March 29, 2016
Mr. Kapur, agent for the Registrar raised the issue that the appeal was not made within 15 days, as required pursuant to section 9 of Ontario Reg. 631/98.
The vehicle was impounded on March 13, 2016 and the Notice of Appeal was received by at the Tribunal offices on March 29, 2016, one day after the 15 day period prescribed by statute. Rather than requiring the Appellant, who has now re-located outside the country, to file a formal motion, the Tribunal proposed extending the time for filing of the appeal by 24 hours. The Registrar’s representative did not take any position with regard to that proposal and the ruling was made, extending the time for filing the appeal by 24 hours and the hearing proceeded.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that he 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 Applicant
The vehicle owner, I. K., testified that his son was driving the vehicle with his knowledge and permission. I.K. had been out of the country for almost an entire year, from March 2015 until his return to Canada on March 11, 2016 and he had given his son permission to use the vehicle in his absence. At the time the permission was granted, the son had a driver’s licence which the Appellant had seen. Further, the son was driving a truck owned by his employer in 2013 and 2014 and in January 2015, just prior to his departure from Canada, the Appellant saw a photograph of his son driving his employer’s vehicle. He stated he had no reason to suspect his son no longer had a valid licence but, upon becoming aware of the fact, he cancelled the insurance on the vehicle on March 14, 2016. Proof of same is attached to the Notice of Appeal, entered as Exhibit 2.
I.K. testified he had no reason to think his son’s licence was suspended. At the end of April 2015, he was re-newing his insurance to operate his employer’s vehicle.
Evidence for the Registrar
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 13, 2016.
In his submissions, the Registrar’s agent asserted that due diligence must be exercised within a reasonable time of the impoundment to be relied upon but, in the present case, the Appellant had been away for a year and, while the Appellant might have seen a picture of his son driving his employer’s vehicle in January 2015, that was not sufficient to discharge the burden of due diligence.
Further, Mr. Kapur argued that even though the Appellant was out of the country, the public can access the Ministry’s website and, for a nominal fee, ascertain whether or not an operator’s licence is valid. There is also a line which the public can access via telephone to call and determine the validity of a driver’s licence.
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).
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
The evidence established that the Appellant had not seen his son’s driver’s licence since he left the country in March 2015 and he had not made any inquiries to ensure the licence was still valid. The son was left in possession of the vehicle owned by the Appellant with permission to drive the vehicle whenever he required it. The Appellant assumed that his son was driving with a valid licence at all times; he had not been advised otherwise.
The claim of due diligence requires some action on the part of the owner. It cannot be sufficient to assume, hearing nothing to the contrary, that the driver of your vehicle has a valid licence. The Appellant took no steps in his absence to ensure his son was licensed. In this case, where the owner/Appellant was absent for prolonged periods of time, it would have been prudent and reasonable for him to make inquiries, from time to time, to ensure his son still had a valid driver’s licence.
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
_______________________
Patricia L. Cassidy, Vice-Chair
RELEASED: April 27, 2016