Date: 2019-11-06

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:

Sheryl Bergie

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: Sheryl, Appellant

For the Respondent: Stephen Grootenboer, Agent

Place and date(s) of hearing: By teleconference

October 29, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1A hearing was held on October 29, 2019, 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”).

2The Appellant’s vehicle was impounded on September 25, 2019. The Appellant loaned the vehicle to her daughter’s boyfriend M.S. whose licence was under suspension.

3The Appellant appealed the impoundment on the ground that she exercised due diligence in attempting to determine that the driver’s licence of M.S. was not then under suspension.

4For the reasons set out below, I confirm the impoundment.

B. ISSUES

5The issue under the appeal is whether the Appellant exercised due diligence in attempting to determine that M.S.’s driver licence was not under suspension when she loaned him her vehicle.

C. EVIDENCE

6The Appellant testified that she met M.S. for the first time in May or June. She stated that when they first met, the Appellant saw M.S.’s driver’s licence, but looking back, it may have been his photo ID.

7The Appellant lent M.S. her vehicle because the latter’s vehicle had broken down the day before and he needed a vehicle for work. The Appellant assumed that M.S. had a valid driver’s licence since he was already driving his own vehicle. She had no reason to suspect that M.S. was driving under suspension. The Appellant only found out until after the fact, and her daughter was not aware of this issue either.

8The Appellant stated she had “learned a very expensive lesson”, and she hoped she could “give herself a break” by filing the appeal.

9In her Notice of Appeal, the Appellant stated that she was unaware of M.S.’s driving status but has seen proof of M.S.’s fine payment and reinstatement fee for his licence. Under questioning from the Registrar, the Appellant confirmed that it was only after the impoundment that M.S. showed her a copy of the $190 fee that he had paid to get his licence back. The Appellant further confirmed that on the day she lent the vehicle to M.S. she did not ask him if he had a valid driver’s licence, as she assumed he had one.

10The Registrar gave evidence at the hearing that at the time of impoundment, M.S.’s licence was under suspension as a result of a criminal code conviction of driving under the influence. The Registrar also provided evidence showing that the Appellant and her husband have three vehicles registered under their names. The Appellant clarified, however, that one of their vehicles has just been sold. In any event, the Appellant is not seeking an appeal on the basis that it would cause exceptional hardship.

D. LAW

11Section 55.1 of the HTA sets out when the police can impound a vehicle for driving while suspended. More specifically, it provides that the vehicle shall be impounded for 45 days if a person drives a vehicle while his/her licence is under suspension under certain sections of the HTA, and if there has been no previous impoundment in the last two years.

12Subsection 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 appeals on the basis of paragraph (d) 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 subject to the condition described in paragraph 2 of subsection 55.5(1)

13The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

14Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

15The Appellant was honest and frank with her testimony. I appreciate that the Appellant decided to lend her vehicle to M.S. “out of the goodness of her heart””, as the latter needed a vehicle for work. However, the evidence confirms that the Appellant in fact did not take any step to ascertain whether M.S.’s licence was under suspension before lending him her vehicle. She confirmed that she assumed M.S. was legally able to drive because he was driving his own vehicle. The Appellant also could not confirm if she had ever seen M.S.’s driver’s licence or just his photo ID. The Appellant only knew about the suspension and saw the proof of the payment of the fine and reinstatement fee after the impoundment.

16While the Act does not define “due diligence”’, by any standard, a person cannot be said to be exercising due diligence by acting upon assumptions and on information they may or may not have seen several months prior regarding the driver.

17In view of the above, I find that the Appellant has not established that she exercised due diligence in attempting to determine that the driver’s licence of M.S. was not then under suspension.

18While I appreciate this may have been an expensive lesson for the Appellant, I am bound by the law and statute that governs impoundment matters.

ORDER:

19For the reasons set out above, pursuant to s. 50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant’s motor vehicle.