Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10068/MVIA
CASE NAME: 10068 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
10068 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: March 16, 2016
REASONS FOR DECISION AND ORDER
A teleconference hearing was held on March 16, 2016 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 March 17, 2016 with reasons to follow.
These are the reasons for the Tribunal’s Order.
BACKGROUND
The Appellant is the owner of a vehicle that the police impounded on February 11, 2016 (hereafter, “the motor vehicle”). The details of this motor vehicle and date of appeal are as follows:
Motor Vehicle: Ford, COF 1999
Date of Appeal February 16, 2016
ISSUES
The motor vehicle was impounded while it was being operated by the Appellant’s son, who had a suspended driver’s licence at the time due to a prior dangerous driving conviction. The Appellant appeals on the basis that she exercised due diligence (i.e. all reasonable efforts) to determine that her son’s 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 was not suspended as provided in section 50.2(3)(c) of the Act.
The Appellant also appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act. Since the Tribunal ordered the Registrar to release the vehicle under the “due diligence” ground, the Tribunal will not deal with this ground of appeal.
FACTS
The summary of the Appellant’s evidence is as follows:
The Appellant testified that, at the time of impoundment, her son was driving the motor vehicle. She believed that her son was returning home after meeting with his previous employer to explore an employment opportunity. The Appellant provided, in her evidence, a letter from her son’s employer in support of this proposition (Exhibit 2, page 9). This letter confirmed that her son had met with the employer to discuss the possibility of returning to work. The Appellant further testified that, as a result of this meeting, her son re-commenced employment with this employer.
The Appellant’s son was convicted of dangerous driving under the Criminal Code of Canada on March 2, 2015. As a result of this conviction, the Ministry of Transportation suspended his driver’s licence for a one-year period effective March 2, 2015 (Exhibit 5, page 3). As a result of this conviction, the Court placed him under a probation order. One of the terms of this probation order is as follows (Exhibit 2, page 6):
- Not to occupy the driver’s seat of any motor vehicle except when going directly from local school or local work i.e, Greater Kingston Area (the onus being on you to prove such to your Supervisor in a manner approved of by your Supervisor).
The Appellant, under cross-examination, denied that her son received a Notice from the Ministry of Transportation regarding the suspension of his Ontario driver’s licence. The Respondent’s Agent produced a signed Canada Post delivery acknowledgment which purported to be signed by her son. The Appellant insisted that the signature on the delivery acknowledgment form produced by the Respondent was not her son’s.
The Appellant produced another Canada Post delivery acknowledgment (Exhibit 7, page 4), which she alleges shows her son’s actual signature. She insisted that the signature on this delivery acknowledgment does not match with the signature on the delivery acknowledgment produced by the Registrar.
The Appellant further testified that, at the time of impoundment, the police charged her son for driving a motor vehicle while disqualified from doing so contrary to section 259(4) of the Criminal Code and for failing to comply with his probation order. The Crown withdrew these charges on February 29, 2016 (Exhibit 3).
Registrar’s Evidence
The Registrar tendered the following documents as evidence:
A 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;
A copy of the notice forwarded to the Registrar regarding the impoundment; and,
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 23, 2016.
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) and (d). However, as noted above, given that the Tribunal released the vehicle on the ground of “due diligence” , it will not address the issue of “exceptional hardship”.
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.
ANALYSIS
The Appellant denies that her son received the Ministry of Transportation suspension notice. The Registrar’s Agent, Mr. Kapur, submitted that the Appellant was not credible in claiming that her son did not receive the suspension notice from the Ministry of Transportation as he signed his name on the Canada Post delivery slip.
The Registrar’s Agent further submitted that the Appellant did not do her due diligence to determine whether her son’s driver’s licence was under suspension at the time her vehicle was detained. Mr. Kapur also submitted that the Appellant’s son took the vehicle to a meeting with his previous employer and that a drive to such a meeting cannot be considered a “drive to work” as contemplated by his probation order.
In support of his position, Mr. Kapur submitted that in Re: 1672 v. Registrar of Motor Vehicles [LAT 2003] the Tribunal noted that there are four ways for a careful and prudent individual or company to determine if a driver had a valid Ontario driver licence. First, they may contact the Ontario Ministry of Transportation by telephone at 1-905-565-6555 for automated service; second, they may access the website www.mto.gov.on.ca; third, they may attend personally to obtain a driver’s abstract at a local MTO Driver Licence Issuing Office; or fourth, they may attend at a Service Ontario Kiosk. Mr. Kapur submitted that the Appellant did not undertake any of these four methods and therefore failed her obligation to do her due diligence.
Black’s Law Dictionary defines due diligence as follows:
a measure of prudence, activity, or assiduity, as is properly to e 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.
It is clear that the Appellant’s son was convicted for dangerous driving and other offences under the Criminal Code of Canada that resulted in a probation order being made against him. This Order prohibited him from driving, except to and from school and work. In addition, it is clear that the Ministry of Transportation suspended his driver’s licence under section 41 of the Highway Traffic Act.
This Tribunal disagrees with the Registrar’s assessment regarding the requisite standard of due diligence for owners in permitting others to use their vehicles. Each case must be decided on its own unique facts. The criteria outlined in Re 1672 may be relevant when one is allowing a stranger to use the vehicle, but requiring an owner to take such steps in considering whether to lend a vehicle to an immediate family member with whom they are intimately familiar is unreasonable.
The Tribunal in Re 7854 v. Registrar of Motor Vehicles, 2013 CanLII 5995 (ON LAT) dealt with a fact situation similar to the present case. In that case, the Tribunal held:
Having attended the Court at which he was found guilty of dangerous driving and being told, as evidenced by the Probation Order submitted by the Applicant, that by order of the Justice Graydon he was permitted to drive for certain prescribed purposes (and there is no evidence before the Tribunal that the Applicant was driving at a time not permitted by that order), and then confirming this with legal counsel, the Tribunal concludes that the Applicant did, indeed, exercise due diligence
The Tribunal accepts the Applicant’s position, that having been told by a Judge that he can drive to and from work, he would have no reason to believe that the Judge’s Order could be overridden by the Ministry. The Applicant in these circumstances acted prudently and with caution, therefore, with the degree of diligence that would be exercised by a reasonable person faced with a situation such as his. In fact, it is reasonable to conclude that at the time the vehicle was detained in order to be impounded, the licence was not then under suspension, and such might be the conclusion should a similar occurrence come to pass during the period of this Probation Order.
The Appellant testified that she was present in the courtroom while her son was sentenced for dangerous driving. The Appellant’s account is supported by her son’s statement to the arresting officer from the day of impoundment. The Officer’s notes state: “When informed of the reason for the stop the accused claimed that his probation order allowed him to drive to and from work”.
The Tribunal finds that the Appellant genuinely believed that the sentencing judge allowed her son to drive for work-related purposes within the Greater Kingston Area. I find this belief to be reasonable. On the basis of the Appellant’s reasonable belief, she allowed her son to drive the vehicle to a work-related meeting on the day of impoundment. It is not for the Tribunal to determine whether or not the Appellant’s son was driving in contravention of the probation conditions though the Tribunal notes that charges related to him driving on the day of the impoundment were withdrawn (Exhibit 3).
This Tribunal finds that the Appellant, in the given circumstances, met her obligation to act prudently and with due diligence, when she allowed her son to drive her vehicle for a work related meeting. Based on her knowledge of the terms of the probation order, it was reasonable that she permitted her son, in these particular circumstances to operate the motor vehicle on the day of impoundment.
As this Tribunal had found that the Appellant exercised due diligence in her decision to allow her son to operate the motor vehicle, it is unnecessary to determine whether her son was validly served with the notice of suspension and the impact of any such determination.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal, confirms its order that the Registrar release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Harinder S. Gahir, Vice-Chair
Released: April 22, 2016