File Number: 12002/MVIA
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:
2224973 Ontario Inc. o/a Main East Car Wash
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jacqueline Castel
Appearances:
For the Appellant: R.B, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference on: April 29, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on April 29, 2019 to consider the appellant’s appeal of the 45 day impoundment of its 2009 Hyundai, ASE (the “vehicle”).
2Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person, who is driving a vehicle, is under suspension. The vehicle was impounded pursuant to this subsection of the Act on April 5, 2019.
3The appellant corporation operates a car wash and detailing business. The driver of the vehicle, at the time of the impoundment, was one of the appellant’s employees. He was driving the appellant’s vehicle in the course of his employment.
4The appellant is appealing the impoundment on the ground of due diligence.
ISSUE
5The issue to be determined is whether the appellant exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence.
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant did not exercise due diligence within the meaning of s. 50.2(3)(c) of the HTA.
LAW AND ANALYSIS
7The owner of a vehicle that has been impounded, pursuant to s. 55.1(1) of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
8There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on the grounds of due diligence.
DUE DILIGENCE
9In order to establish that the appellant exercised due diligence, within the meaning of section 50.2(3)(c) of the HTA, the appellant must prove that he made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was impounded.
10The suspended driver, C.S., testified that he was hired by the appellant on March 4, 2019 as a driver. He acknowledged that his driver’s licence was suspended on April 5, 2018 for impaired driving. However, he stated that he believed his driver’s licence had been reinstated when he interviewed for a driver position with the appellant on March 4, 2019. C.S. testified that he told the interviewers, R.B. and J.B., that he had a valid driver’s licence. In response to a question on cross-examination, he admitted that he did not show the interviewers his driver’s licence before being hired, nor did he show it at any other time before the vehicle was impounded. C.S. stated that he could not produce a driver’s licence because one had not been mailed to him by the Ministry of Transportation. C.S. also acknowledged that he did not disclose his driving history or convictions to the appellant.
11R.B. testified that the appellant would not have hired C.S. if it had known his driver’s licence was under suspension. He admitted that the appellant did not confirm the status of C.S.’s driver’s licence with the Ministry of Transportation or by requesting that C.S. produce a recent driver’s record search for Criminal Code convictions, a document which can be ordered from the Ministry of Transportation.
12The appellant’s position is that it exercised due diligence by asking C.S. if he had a valid driver’s licence prior to hiring him and by relying on him to be forthright about the status of his licence and driving history. For the purpose of section 50.2(3)(c) of the HTA, due diligence would require that the appellant, as an employer, inspect C.S.’s driver’s licence and confirm with the Ministry of Transportation, or by reviewing a recent driver record search for Criminal Code convictions, that C.S. had a valid driver’s licence, before allowing him to drive its vehicles.
13Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 40.2(3)(c) of the Act.
ORDER
14Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: April 30, 2019