Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-01-14

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1 of the Act.

Between:

Marguerite Jack-Vermey Appellant

-and-

Registrar of Motor Vehicles Respondent

Decision and Order

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Applicant: self represented

For the Respondent: Sanjay Kapur, agent

A. Overview

1On December 16, 2019 a teleconference hearing was held to consider the appellant’s appeal of a 45 day impoundment of her 2014 Ford (the “vehicle”) under s 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the Act). The vehicle was impounded on November 1, 2019. At the time of the impoundment her vehicle was being driven by a male friend whose licence was both suspended and expired.

2The appellant appeals on the ground she exercised due diligence in determining whether the driver, at the time of impoundment, had a valid licence. The 45 day impoundment was set to expire at midnight on the day of the hearing and the appellant told the hearing she would be attending to retrieve the vehicle as soon as it was possible.

3The appellant also concurrently filed a Notice of Motion seeking an extension of time to file her appeal outside of the 15-day timeline prescribed in the Regulations of the Highway Traffic Act. The motion to extent the time of filing her appeal was granted on December 9, 2019.

4Having carefully reviewed the evidence provided during the hearing, I find the appellant did not exercise due diligence in attempting to determine if the driver’s licence was under suspension and I confirm the impoundment of the appellant’s vehicle.

B. Issue

5The sole issue to be determined in this appeal is whether the owner of the vehicle exercised due diligence in attempting to determine the driver’s licence of the driver was not under suspension.

C. Law and Analysis

6The owner of a vehicle impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment based on one of four grounds set out in s. 50.2 (3) of the Act. In the present case, the appellant relies on the third ground, namely that she, as the owner, exercised due diligence in attempting to determine that the licence of the driver was not under suspension.

7The onus is on the appellant to demonstrate she exercised due diligence.

8Following the hearing the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.

Evidence of Due Diligence

9The facts of the impoundment are not in dispute. The appellant gave the driver permission to use her vehicle some months before the impoundment and allowed him to continue to drive it up to the time of the impoundment. On the day of the impoundment he asked the appellant for permission to use the vehicle to go downtown. He was stopped by police driving the vehicle. It was determined his licence was suspended and had also been expired since 2016.

10The appellant was very forthright in her evidence and in her submissions. She told the hearing she had known the driver for some period of time and had, in the months leading up to the impoundment, been assisting him with several personal issues, including freshening up his resume and assisting him in trying to replace identification which he said had been lost with his wallet. She was also trying to support him as he dealt with addiction challenges.

11She said she had seen a photocopy of his licence months before the impoundment. She believed he had a valid licence as he was looking to return to work he had done before which required an enhanced licence. She was frank when she conceded she did not scrutinize the photocopy and didn’t pursue the issue of his licence again until after the vehicle was impounded.

12It was clear the appellant placed her trusted in the driver when he said he was licenced and that trust was abused. She said she had been focusing on mitigating his issues and that she had been naïve in not taking further steps. She was candid when she said she did “not set the bar high enough”.

13The 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.

14The objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This will help to promote more safety on the roads.

15I agree with the respondent when he argued that due diligence must amount to more than just placing trust in what a person says about the state of their licence. Had the appellant actually examined the photocopy of the licence she would have seen that it was an expired licence and from there presumably would have made further inquiries before letting her friend drive her vehicle.

16I find that a reasonable and cautious person, after being shown a photocopy of a licence, would have taken additional steps to ensure the validity of his right to drive. Unfortunately for the appellant, although her intentions were noble, they do not, in these circumstances amount to due diligence.

D. Order

17For the reasons set out above, pursuant to s 50.2 (5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.