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
Between:
Chi Tsui
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Chi Tsui, Self Represented
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: December 21, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on December 21, 2020 to consider an appeal filed by Chi Tsui (the “appellant”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) relating to the impoundment of his motor vehicle.
2The appellant’s motor vehicle was impounded on November 23, 2020 as at the time of the impoundment the appellant’s brother (the "Operator”) was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days
3The appellant appealed on two grounds:
(1) That he exercised due diligence in attempting to determine the status of the driver’s licence of the Operator of the motor vehicle; and
(2) that the impoundment will result in exceptional hardship.
4For the reasons set out below, the appeal is allowed, and the vehicle is ordered to be released.
ISSUES TO BE DETERMINED:
5The first issue to be determined in this appeal is whether the appellant exercised due diligence in attempting to determine whether the driver’s licence of the Operator of the motor vehicle was under suspension at the time the vehicle was detained in order to be impounded – section 50.2(3)(c) of the Act;
6The second issue to be determined is whether the impoundment will result in exceptional hardship as set out in section 50.2(3)(d) of the Act and O.Reg 631/98, section 10. On the facts of this appeal the applicable provisions of section 10 require that the appellant demonstrate that no alternative to the impounded vehicle is available and every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including making arrangements to do without any motor vehicle during the impoundment period. If the appellant satisfies the above requirement, he must demonstrate that the loss of use of the impounded vehicle will result in a financial or economic loss and that these consequences will be “immediate, significant and lasting”.
EVIDENCE AND ANALYSIS
7The appellant is the owner of the motor vehicle that was being driven by the Operator at the time of the impoundment on November 23, 2020. At the time, the Operator’s driver’s licence was under suspension. The Ministry of Transportation’s records indicate that his licence was suspended on February 13, 2008 and the suspension continued at least until the date of impoundment.
Due Diligence
8In regard to due diligence, the appellant testified that the Operator asked to borrow the appellant’s car for two days beginning November 22, 2020 in order to move some personal items out of a storage unit.
9He also testified that as he knew the Operator’s driver’s licence had been suspended he asked to see the licence before allowing the Operator to drive the vehicle. According to the appellant, his brother showed him his driver’s licence which had an expiry date in November 2022.
10In support of his testimony, the appellant relied on a Release Order (ex #2) which the appellant testified the Operator obtained from the Ontario Court of Justice when he was released from custody following his arrest on November 23, 2020. From this document it appears that he was charged under the Criminal Code with operating a conveyance while suspended (s. 320.18(1)), and with altering a document with the intent to defraud (s. 397(1)). It was the appellant’s submission that the second charge, altering a document with the intent to defraud, is in relation to the Operator’s driver’s licence, and thus, corroborates the appellant’s testimony that the Operator had in his possession a driver’s licence that had been altered to appear to be current.
11When asked if the Tribunal will be hearing evidence from the Operator, the appellant responded that he asked the Operator to testify but he refused to do so.
12In cross-examination by the agent for the respondent the appellant confirmed that he did not contact the Ministry of Transportation or do an on-line check with the Ministry to determine if the Operator had a valid driver’s licence. At the time he did not know that such a service existed.
13The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that he exercised due diligence in attempting to determine if the Operator had a valid driver’s licence.
14In closing argument, the respondent did not challenge the appellant’s credibility. It is concerning that the appellant did not call his brother as a witness in support of his appeal. While apparently the brother declined to participate, the appellant could have summonsed him to testify. His evidence would have been very relevant and helpful to the issues in this appeal. Ultimately, however, the respondent did not ask the Tribunal to draw an adverse inference from the appellant’s failure to call the Operator as a witness, and I decline to do so in these circumstances.
15I accept the appellant’s testimony that the Operator showed him an altered driver’s licence valid until November 2022.
16The respondent’s only submission on the ground of due diligence was that it should be dismissed as the appellant could have and should have contacted the Ministry of Transportation to determine the status of the Operator’s driver’s licence.
17While acknowledging the important difference between quasi-criminal offences and administrative appeals, I agree with the following comments from the Tribunal’s decision in Marshman v. Registrar of Motor Vehicles, 2020 CanLII 95846:
As to what constitutes “due diligence”, the standard was considered by the Supreme Court of Canada in R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove she took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.
In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held passivity should not be confused with diligence, rather “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.”
18Whether the ground of due diligence has been made out is highly fact-specific, the degree to which efforts are considered to be reasonable will vary with circumstances.
19Here, the appellant asked to see the Operator’s licence and was provided with one that was valid on its face. In these circumstances, I do not agree with the respondent’s position that the appellant was required to contact the Ministry to look behind what appeared to be a valid driver’s licence. In my view that goes beyond what is expected of the “reasonable person”. This Tribunal has held that an individual need only ensure that the proposed driver has a driver’s licence that is valid on its face.1
Exceptional Hardship
20Although it is not necessary for me to address the issue of exceptional hardship as the appeal is allowed on the ground of due diligence, the appellant would not have succeeded on this basis. Alternatives to his own vehicle were available to him. Further, the only activities affected by the loss of use of his automobile resulted not in a hardship but an inconvenience. Lastly, his testimony about the financial loss arising from the impoundment was vague and did not establish that the loss would be “immediate, significant and lasting”.
ORDER
21For the reasons set out above the appeal is allowed and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
_________________________
Theodore Crljenica,
Vice-Chair
RELEASED: December 24, 2020
Footnotes
- See, for example, 12280 v. Registrar of Motor Vehicles, 2019 CanLII 101460 at paras. 10-11.