Alps Roofing Solutions Inc. v. Registrar of Motor Vehicles, 2018 CanLII 117017

Licence Appeal Tribunal

Date: 2018-10-16

Appeal under subsection 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

Between:

Alps Roofing Solutions Inc.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dawn Kershaw

Appearances:

For the Appellant: Derek Dempsey, Representative

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference: October 3, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on October 3, 2018 to consider the appellant’s appeal of the 45-day impoundment of its 2005 GMC truck (the “vehicle”). The vehicle was impounded on August 24, 2018 and is due to be released on October 8, 2018.

ISSUES:

2The issues to be determined are whether:

a. the vehicle was stolen at the time it was impounded; and

b. the appellant exercised due diligence in attempting to determine that the licence of the driver was not under suspension.

CONCLUSION:

3On the evidence before me at the hearing, I find that under section 50.2(3)(c) of the Highway Traffic Act, R.S.O., 1990, c. H.8 (“HTA”), the vehicle was not stolen and the appellant did not exercise due diligence in attempting to determine that the licence of the driver was not under suspension.

LAW AND ANALYSIS:

4The owner of a vehicle which has been impounded pursuant to s. 55.1 of the HTA may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the HTA. Here, the appellant relies on paragraph (a): that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded; and (c) that the owner exercised due diligence in attempting to determine that the licence of the driver was not under suspension. If I find that either of the grounds of appeal have been satisfied, I may, pursuant to subsection 50.2(5) of the HTA, order the Registrar to release the motor vehicle.

5The facts of the impoundment are not in dispute. The appellant is a roofing company that owns several commercial vehicles of which the impounded vehicle is one. The owner of the company, Derek Dempsey, hired two people as subcontractors to work at one of his job sites. When they advised him that they would not be able to get their tools to the job site in their car, he told them they could use one of the work trucks.

6One of the two men drove the truck to the job site, although it was not clear which one. At some point one of the two men took the vehicle without consent to conduct a personal errand. He was pulled over by the police and the truck was impounded because he could not produce a valid licence. The truck was impounded for 45-days.

Stolen

7Mr. Dempsey testified that he told the men to go only from point A to point B, namely from his place of business to the job site, and not to take the truck anywhere else. This evidence was a matter of some dispute. However, given the interpretation to be given to the term “stolen” I find that whether or not Mr. Dempsey issued these instructions does not matter.

8Based on the evidence before the Tribunal, and similar to the case of Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149 (“Auto Zone”), the only evidence about whether the vehicle was stolen was from Mr. Dempsey who testified that the vehicle was used contrary to his instructions.

9I find as in Auto Zone that the fact that the vehicle was used contrary to his instructions does not meet the definition of “stolen” in the HTA. In fact, in this case Mr. Dempsey conceded he gave the men the keys and told them they could use the truck. As set out in paragraph 16 of Auto Zone, it would expand the definition of “stolen” within the meaning of s. 50.2(3)(a) of the HTA if the term “stolen” included someone using the truck contrary to the owner’s instructions.

10As a result, I find that this truck was not stolen and this ground of appeal fails. My finding is supported by the evidence of Kelly Hodgins who works for the respondent and who, at Mr. Dempsey’s instructions, took the lead in trying to find out more information about the impoundment and how to get the vehicle back. She testified that when she spoke to the police officer, he said to her that the vehicle was not stolen and she advised she responded “absolutely”. I turn now to a consideration of whether the appellant exercised due diligence.

Due Diligence

11Under section 50.2(3)(c) of the HTA, the Appellant must prove 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.

12There is no definition of “due diligence” in the HTA. The dictionary definitions of “due diligence” refer to words and concepts such as what was proper or what ought to be; or being careful. Black’s Law Dictionary refers to what is properly to be expected from a reasonable and prudent person under the particular circumstances. There is no absolute standard, but the required actions depend upon the particular circumstances, and an assessment of what a reasonable and cautious person would do under those circumstances.

13The HTA’s objective is to promote safety by deterring vehicle owners from deliberately or carelessly allowing suspended drivers to drive their vehicles.

14Mr. Dempsey testified that when the two men he hired as subcontractors the night before appeared at his place of business, he spoke to them and one of them showed him a driver’s licence from Alberta, and the other driver showed him a licence that he “glanced at”. He later testified that he checked the class of licence and saw that it was from Ontario.

15Mr. Dempsey testified that he has three commercial vehicles. He also testified that usually if he hires someone who will be driving a company vehicle, he gives their licence information to his insurance company who will check the information and let him know if all checks out. However, on this occasion, it was early in the morning and the insurance company was closed and the hiring was last minute. Mr. Dempsey testified that he believed the men when they told him they had valid licences. Mr. Dempsey testified that the suspended driver was a work acquaintance, and it was he who called Mr. Dempsey the night before to see if he had work for them.

16Mr. Dempsey was forthright about the fact that he did not check the status of the drivers’ licences in any other way but to look at them. He gave somewhat contradictory evidence about whether he merely glanced at them or he looked at them with more scrutiny. However, I find that either way his actions do not constitute due diligence.

17While Mr. Dempsey testified that he usually asks the insurance company whether a driver’s information checks out, on this occasion he did not do so.

18The question of what constitutes due diligence was considered by the Tribunal in 10719 v. Registrar of Motor Vehicles, 2017 ONLAT-MVIA. In that decision, the Tribunal held that the level of inquiry and action required to constitute due diligence depends on the nature of the relationship between the owner and the driver, as well as on the particular situation.

19In this case, as in 10719, Mr. Dempsey did nothing other than ask the driver if he had a valid driver’s licence and either glance or look at it. He took no other action. The Appellant was operating a business with three commercial trucks, and he permitted someone relatively unknown to him to take one of his trucks. Even if his usual policy of checking with the insurance company met the standard of due diligence, which I do not decide in this case, in this situation he did not even do that. As such, I find that the appellant did not exercise due diligence.

ORDER:

20Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.