Appeal under section s. 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 for driving while suspended.
Between:
S.H.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Daniel Howard, Counsel
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: July 3, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on July 3, 2018, to consider the appellant’s appeal of the impoundment of his 2001 Subaru (the “vehicle”) on May 18, 2018, for 45 days.
B. preliminary issue – grounds of appeal
2At the hearing the appellant abandoned the grounds of appeal that the vehicle was stolen and that the impoundment will result in exceptional hardship. The hearing of the appeal proceeded on the sole ground that due diligence had been exercised by the appellant.
3The appellant submits that he exercised due diligence.
C. issue
4The issue to be determined is whether the appellant exercised due diligence to determine whether the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not under suspension.
D. CONCLUSION
5I find that the appellant’s evidence fails to support a finding that the appellant exercised due diligence to determine whether the driver’s licence was not suspended.
E. LAW AND ANALYSIS
6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2 of the HTA, appeal the impoundment and request an order that the Registrar release the vehicle.
7An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:
(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;
8The appellant seeks to have the vehicle released on the basis that he exercised due diligence in attempting to determine that the driver of the motor vehicle at the time it was impounded had a driver’s licence which was not under suspension.
Did the appellant exercise due diligence in attempting to determine that the driver’s licence was not under suspension?
9I find the appellant did not exercise due diligence in determining whether the driver’s licence was not under suspension.
10“Due diligence” is not defined in the HTA. The definition of “due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is:
Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent person under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
11The plain reading of s. 50.2(3)(c) of the HTA establishes that the appellant must show that he took reasonable steps to determine that the driver’s licence in question was not under suspension at the time of impoundment.
12The appellant testified that he gave permission to his long-time girlfriend to drive the vehicle. While at her destination, the appellant’s girlfriend consumed alcohol and allowed a third party to drive the appellant’s vehicle unbeknownst to the appellant. The appellant testified that he did not know the status of the third party’s driver’s licence, had no contact with the third party on May 18, 2018, and did not know that his girlfriend had given the third party permission to drive his vehicle.
13Due diligence requires that the appellant must show that reasonable steps were taken to ensure that the third party driver had a valid driver’s licence before allowing the third party to drive. The appellant was unaware that a third party had been given permission to drive the vehicle and made no attempts to determine if the driver’s licence was under suspension on the day of the impoundment. Further, there was no evidence from the girlfriend as to what she did to exercise due diligence Therefore the appeal must fail. Based on the evidence presented at the hearing, I do not find that the appellant exercised due diligence within the meaning of section 50.2(3)(c) of the HTA.
ORDER
14Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. As the impoundment period has expired, the appellant may take steps to obtain the release of the vehicle at the appellant’s cost.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: July 9, 2018