J. R. v. Registrar of Motor Vehicles, 2018 CanLII 105100

Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-01-23

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 for driving while suspended

Between:

J. R. Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jacqueline Castel, Member

Appearances:

For the Appellants: Self-represented

For the Respondent: Sanjay Kapur, agent

Heard by teleconference: January 18, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is appealing the impoundment of her motor vehicle on the grounds that:

(i) she exercised due diligence in attempting to determine that the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.

2On December 12, 2017, the date of the impoundment, the appellant loaned her motor vehicle to her son, who has a valid G2 driver’s licence.

3She was informed by the police that her vehicle was being impounded because the driver of the vehicle, “M. M.”, was a disqualified driver. Her son was sitting in the passenger seat when the police detained them. The appellant does not know M. M., and did not give him permission to drive her vehicle. She did not ask her son for any information regarding the identity of M. M., why he was driving her vehicle on December 12, 2017, and whether he asked to verify M. M.’s licence before allowing him to drive the vehicle. Neither the appellant’s son nor M. M. gave evidence at the hearing.

5I am required to determine whether the appellant exercised due diligence in attempting to determine that the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).

6In the circumstance of this case, there was insufficient evidence that the appellant exercised due diligence. Accordingly, I confirm the impoundment. Reasons follow.

B. ISSUES:

7The appellant raises one issue on this appeal:

(i) Did she exercise due diligence in attempting to determine that the licence of the driver of the motor vehicle, at the time it was detained in order to be impounded, was not under suspension?

C. EVIDENCE:

Appellants’ Evidence

8The appellant testified that she loaned her vehicle to her son on December 12, 2017. Her son has a valid G2 driver’s licence and is covered under her insurance policy. When her son obtained his driver’s licence, she established certain rules for the use of her vehicle, including that he was not allowed to let anyone else drive the vehicle or even be in the car with him.

9When her son did not return home by 11 p.m. on December 12, 2017, she called him. Her son told her that the police had pulled over the car. The appellant spoke to the police officer, who informed her that the driver of the vehicle, M. M., did not have a valid driver’s licence and, therefore, he had to impound the vehicle. He also informed her that her son was in the passenger seat of the vehicle.

10The appellant testified that she does not know M. M., and she did not give him permission to drive her vehicle.

11When asked for information on how M. M. came to be driving her vehicle, she stated that she did not know and that she did not make any inquiries of her son when preparing for the appeal. She stated that she did not ask her son whether he verified M. M.’s driver’s licence before M. M. was allowed to drive the vehicle. She also stated that she is not speaking to her son right now, and chose not to call him as a witness.

Respondent’s Evidence

12Mr. Kapur filed the following documents which were admitted into the record:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the appellants as owners.
2. Copy of the notice prepared by the officer who detained the impounded motor vehicle indicating that the vehicle, at the time it was detained, was being driven by a disqualified or suspended driver, as described in paragraph 4 below;
3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment; and
4. Copy of the Ministry of Transportation records indicating that the driver’s licence of the driver, at the time of impoundment, was suspended until October 21, 2020 for driving while suspended under the Act.

D. LAW:

13Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Under section 55.1 of the HTA, the impound period is 45 days if there has been no previous impoundment in the last two years.

14Subsection 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. The appellant is appealing on the basis of paragraphs (c) which states:

(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

15In order to establish that the appellant exercised due diligence within the meaning of s. 50.2(3)(c) of the HTA, she must prove that she 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.

16Following 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.

E. ANALYSIS:

17Under the HTA, to establish due diligence, the appellant must prove she made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time of the impoundment.

18In this case, there was no evidence before the Tribunal regarding how M. M., a suspended driver, came to be driving the appellant’s vehicle. The appellant gave evidence that she only gave permission for her son, who has a valid driver’s licence, to drive her vehicle.

19There was also no evidence before the Tribunal as to what, if any, efforts were made by the appellant’s son to determine whether M. M. had a valid driver’s licence. The appellant’s son was seated in the front passenger’s seat of the vehicle when the vehicle was detained, and there was no allegation before the Tribunal that M. M. stole the vehicle or was driving it without the consent of the appellant’s son.

20In these circumstances, there was insufficient evidence before the Tribunal that all reasonable efforts were made to determine that the driver of the motor vehicle, at the time it was detained in order to be impounded, was not under suspension.

F. ORDER:

21Therefore, for the above reasons, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellants’ motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.