LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-05-25

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act

Between:

Nationwide Home Comfort Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Mary Ann Spencer, Member

Appearances:

For the Appellant: Roman Berson and Maria Stephen, Agents

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference May 23, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A hearing was held on May 23, 2017 by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).

2The Appellant’s vehicle was impounded on April 11, 2017. The Appellant filed its appeal on April 26, 2017. At the time of the impoundment, the vehicle was being driven by an individual whose licence had been suspended for life as a result of a Criminal Code conviction. A Notice of Impoundment was issued for a period of 45 days.

3The Appellant loaned its vehicle in order to assist the suspended driver. However, the Appellant was fully aware that the suspended driver did not have a valid driver’s licence and loaned the vehicle on the understanding it would be driven by his daughter, a licensed driver.

4The Appellant’s Notice of Appeal did not specify the grounds for appeal. The Appellant’s agent confirmed that it was appealing the impoundment on the ground of due diligence and I considered the Appellant’s appeal of the impoundment on that basis.

5For the reasons set out below, I find that the Appellant has not demonstrated that it conducted due diligence in accordance with the requirements of the Act. Accordingly, I confirm the impoundment.

ISSUES:

6The Appellant confirmed that the only ground on which the Appellant was appealing was that it conducted due diligence to determine the status of the driver’s licence when it loaned its vehicle. Therefore the issue to be considered is:

(a) Did the Appellant exercise “due diligence” in checking the status of the driver’s licence of the suspended driver?

The owner of the motor vehicle, the Appellant, must establish the grounds of appeal raised on a balance of probabilities.

EVIDENCE:

7The impounded vehicle is leased by the Appellant. The motor vehicle, a 2016 Toyota MTL, was impounded on April 22, 2017 when it was being driven by D.W., whose licence was suspended for life on May 13, 2014.

8The Appellant is a business. Roman Berson is its owner and vice-president. D.W. worked for a company that used to do business with the Appellant. D.W. is no longer employed. Mr. Berson testified that he recognized that D.W. “needed to get himself back on his feet” and when D.W. told him that he needed a vehicle to run some errands, Mr. Berson agreed to lend him one of his company’s vehicles.

9D.W. was accompanied by his daughter when he arrived at the Appellant’s premises to borrow the vehicle. D.W. told Mr. Berson that he did not have a driver’s licence and that his daughter would be driving. Mr. Berson made a copy of the daughter’s driver’s licence as well as a copy of D.W.’s health card and loaned the vehicle to D.W. for one week on the understanding that only the daughter would be operating it. He testified that he did not give D.W. permission to drive it; he believed D.W. was responsible enough that he would not operate the vehicle.

LAW

10Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

11Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. I have considered the Appellant’s appeal on the basis of paragraph (c) of subsection 50.2(3), which states:

50.2(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:

(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

12Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

ANALYSIS

13In order to establish that the Appellant exercised due diligence within the meaning of s. 50.2(3)(c) of the HTA, the Appellant must prove that it made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was detained. The Appellant’s position is that the vehicle was loaned to D.W., the suspended driver, on the understanding that his daughter would drive the vehicle because the Appellant was aware that D.W. did not have a valid licence.

14As Mr. Kapur submitted, the wording of section 50.2(3)(c) of the Act is narrow. It refers specifically to the driver’s licence of the individual who was operating the vehicle when it was impounded. The “due diligence” set out in the legislation is the attempt to determine that the driver of the vehicle at the time of the impoundment has a valid licence.

15The individual the Appellant authorized to drive its vehicle was G.W.’s daughter. Had she been the suspended driver in this case, the fact that the Appellant had obtained a copy of her licence before lending her the vehicle may have been sufficient to establish the due diligence set out in the legislation.

16In this case, G.W. obtained control of the vehicle and was driving it when it was impounded. This is what creates difficulty for the Appellant in trying to show that section 50.2(3)(c) applies. As the Appellant knew that the driver’s licence of G.W. was under suspension, it cannot be said that the Appellant exercised due diligence in attempting to determine that G.W.’s licence was not under suspension. It is unfortunate that the Appellant’s trust that G.W. would not drive the vehicle was misplaced. However, for the above reasons, the Tribunal finds that the Appellant did not exercise due diligence as set out in section 50.2(3)(c) of the Act.

ORDER

17For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.