File Number: 11783/MVIA
Appeal under subsection 50.2 of the Highway Traffic Act (Act), R.S.O. 1990, c. H.8 from an Impoundment pursuant to section 55.1 of the Act
Between:
S.W.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Zahra Dhanani, Member
Appearances:
For the Appellant: S.W., Self-Represented
For the Respondent: Steve Groetenboer, Agent
Heard by Teleconference on: January 15, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on January 15, 2019 to consider the appellant’s appeal of the 45-day impoundment of her vehicle that commenced on December 8, 2018.
2On the evening that the vehicle was impounded the appellant had lent it to her boyfriend (M.B.) whose licence was suspended at the time, due to criminal convictions.
3The appellant alleges that she did not know his licence was suspended and that she had checked his licence prior to letting him drive her vehicle.
4The appellant appeals the impoundment on the grounds of exceptional hardship and that she exercised due diligence in trying to ascertain whether the person to whom she lent her car was not under suspension.
ISSUES
5The issues to be determined are: (a) whether the appellant exercised due diligence in trying to ascertain whether the person to whom she lent her car was not under suspension and (b) whether the impoundment resulted in exceptional hardship to the appellant.
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant exercised due diligence in attempting to ascertain whether the driver to whom she lent her car was not under suspension. Due to the finding on the first ground of appeal, I do not need to deal with the second ground of appeal whether the impoundment resulted in exceptional hardship.
LAW AND ANALYSIS
7The grounds on which the appellant has appealed are set out in s. 50.2(3)(c) and (d) of the Act as follows:
(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.
DUE DILLIGENCE
22The question to be answered is should the Tribunal order the Registrar to release the motor vehicle on the basis that the owner of the 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?
23“Due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is defined as follows:
Due diligence: 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.
8On December 7th, 2018, the appellant and her boyfriend M.B. had gone to a McDonalds. Upon leaving the restaurant, M.B. lost consciousness and an ambulance was called. Both the ambulance and the police arrived.
9By the time the police arrived, M.B. was conscious again. M.B. admitted to the police officers that he had drunk a lot of alcohol and stated that he was tired from work. The ambulance staff decided that M.B. did not have to go into the hospital, and there were no criminal charges resulting from this incident.
10At this time, the police informed the appellant that she had some outstanding issues on her record that she needed to deal with. They also spoke to M.B. about several things. One of the things they spoke to him about was that his licence was suspended and that he should not be driving for the landscaping work he does.
11The appellant stated that she did not hear the officers say that his licence was suspended. She testified that on the evening of December 7th, she was very stressed because of what had happened to M.B. and because her very old dog was with them and was unruly. She was very distracted when the officers were speaking to M.B. and states she did not hear them say that he was disqualified from driving and therefore should not be driving.
12The next evening the appellant, accompanied by M.B., voluntarily attended at the police station to resolve the outstanding issues that the police brought to her attention the night before.
13The appellant testified that she drove to the station with M.B. She had asked him to come with her because she wanted some support. She stated that before they went into the station, M.B. asked if he could borrow the car to get something at the store. Before she agreed she asked M.B. to see his driver’s licence.
14The appellant testified that she had only been dating M.B. for a short while and that he had not driven her car prior to that night. She stated that she had worked very hard for that car and that she had not let anyone else drive it before M.B. She was very protective of her car and that is why she asked M.B. to see his licence.
15She stated that when they were having this conversation in the car, Const. Warman had not come down to the front desk of the station (so he would not have seen her ask M.B. for his licence), that she could not smell alcohol on M.B.’s breath and that she had no idea that he was a suspended driver.
16Constable Edward Warman (Const. Warman), the officer that had impounded the appellant’s vehicle, testified at the hearing. He testified that on the evening of December 8th, 2019, the appellant came to the police station with M.B. The appellant entered and then a few minutes later M.B. came into the station.
17Const. Warman noticed a strong smell of alcohol coming from M.B. when he entered the station. Const. Warman testified that M.B. left the station while the appellant was dealing with her matter, got into the appellant’s car, drove away and returned a little while later.
18Const. Warman did not see the appellant ask M.B. to see his licence before he left the station with her vehicle.
19When M.B. returned, Const. Warman impounded the appellant’s vehicle because he did a search on M.B.’s licence and discovered that he was a suspended driver.
20When Const. Warman impounded the vehicle the appellant was confused and shocked. Both M.B. and the appellant were compliant and did not resist. The fact that the appellant voluntarily went to the police station when she was informed about issues on her record (that she was unaware of) and was compliant every time she interacted with the police, goes favourably to her credibility.
21Const. Warman read in a letter from the police officers who had been at the incident at the McDonald’s. The letter stated that the two officers at the scene on December 7th, had mentioned to M.B. that his licence was suspended so that he should not be driving, that when M.B.’s licence was queried there was a Canada Wide Prohibition against him driving. The letter stated that the appellant was there when they mentioned this to M.B.
24I believe the appellant that she did not hear the officers tell M.B. that his licence was suspended. Given the stressful nature of the incident on December 7th, 2018, I believe that the appellant was stressed and distracted and therefore did not hear the police officers state that M.B.’s licence was suspended. The appellant stated that had she known that M.B.’s licence was suspended she would not have given him her car to drive right in front of the police station.
25I found the appellant to be forthright and gave her testimony in a clear and consistent manner. She was asked several questions and her responses were immediate, frank and to the point. I found her to be a credible witness.
26I also found Const. Warman to be a credible witness. I found that the testimony of both the appellant and Const. Warman was not contradictory and that both versions of the facts could co-exist.
27Const. Warman testified that he did not see the appellant question M.B. about his licence. I found the appellant’s response to that to be believable. She stated that she had asked M.B. to see his licence while they were in the car together before Const. Warman came to the front desk from where he could witness them in the car.
28The respondent submitted that Const. Warman testified that M.B. smelled of alcohol and therefore the appellant should not have let him drive her car. Ascertaining whether the appellant could smell the alcohol on M.B. is beyond the scope of this appeal. However, because I have found the appellant to be a credible witness, I accept her answer that she did not smell it. I also accept that Const. Warman did smell alcohol on M.B.s breath. The two different experiences of both witnesses could both be true at the same time.
29I find that the appellant did ask to see M.B.’s licence and that Const. Warman was not in place to see this at the time that she viewed the licence. I find that the appellant in asking to see the licence of the person whom was asking to drive her car was in line with taking reasonable steps to ascertain whether his licence was under suspension or not.
30The Tribunal finds that the appellant genuinely believed that M.B. licence was not under suspension at the time that she let him drive her vehicle and that she exercised due diligence by asking to see M.B.’s licence before allowing him to drive.
31This Tribunal finds that the Appellant, in the given circumstances, met her obligation to exercise due diligence in ascertaining whether the M.B.’s licence was under suspension at the time that she allowed him to drive her car.
DECISION
32After considering the evidence, the Tribunal orders that the Registrar release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: February 27, 2019