Sean Silverthorne v. Registrar of Motor Vehicles, 2020 CanLII 27369

Date: 2020-04-02

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:

Sean Silverthorne

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Decision and Order

Adjudicator: Luisa Ritacca, Member

Appearances:

For the Appellant self represented

For the Respondent Sanjay Kapur, agent

Held by Teleconference: March 31, 2020

Overview

1On March 31, 2020, a telephone conference hearing was held to consider the appellant’s appeal of a 45-day impoundment of his 2009 Dodge Ram (the “vehicle”) under s 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the Act).

2The vehicle was impounded on January 31, 2020. At the time of the impoundment, the appellant’s vehicle was being driven by his friend (now girlfriend), whose licence was suspended and had been since late 2019.

3The appellant appeals on the ground that he exercised due diligence in determining whether the driver, at the time of impoundment, had a valid licence. The appellant retrieved his vehicle on March 16, 2020. He conceded that he did not suffer exceptional hardship as a result of the impoundment.

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. As such, I confirm the impoundment of the appellant’s vehicle.

Issues

5The issue to be determined on this appeal is as follows:

a. Did the appellant exercise due diligence in attempting to determine the driver’s licence of the driver (his friend) was not under suspension at the time she took his vehicle?

Facts

6The facts of the impoundment are not in dispute. The appellant testified that he had known the driver (his friend at the time) for a few years and that in December 2019, she asked him for help as she was without permanent housing. He explained that he and the driver are now in a romantic relationship but were not at the time of the impoundment.

7The appellant testified that prior to loaning his vehicle to her on January 31^st, 2020, he had paid for a car rental for the driver on two separate occasions – once in December 2019 and then again in January 2020. He explained that he went to the car rental company with the driver, handed her driver’s licence to the car rental agent and paid for the rental. He believed that if his friend’s licence was not valid, the car rental company would have known and would not have rented the car to her.

8Further, the appellant testified that before he provided his vehicle to his friend on January 31, 2020, he asked to look at her driver’s licence card and confirmed that it was not expired. He also asked his friend to verbally confirm that she had a valid licence, which apparently she did. He stated that he would have never let her borrow his vehicle had he known that she did not have a valid licence. The appellant testified that his friend maintained that she was unaware of the status of her driver’s licence until the day of the impoundment.

9The appellant acknowledged that he was aware that his friend had been involved in a car accident up north at some point. He did not testify as to whether he asked when the accident took place, whether she had been charged or whether there had been any fallout as a result.

10The appellant explained that he has had his own licence suspended on two separate occasions in the past and that as such he takes the prohibition on driving while under suspension very seriously. He testified as well that when his licence was suspended, he had been required to give up his driver’s licence card. He assumed that because his friend had her driver’s licence card and the date was not expired, that she had a valid licence.

11The appellant admitted that he did not take any steps to verify the information his friend provided about her licence. He did not check the Ministry of Transportation’s website or make any other inquiries. He relied on his friend’s word and on the fact that the car rental company had rented her a car on two separate occasions.

12The Tribunal was presented with a number of documents, including the driver’s driving record, which confirmed that her licence was suspended as of November 12, 2019, as a result of a conviction for failing to remain, following an incident in February 2019.

Law and Analysis

13The 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 ground as set out in subsection (3)(c). The appellant argues that he exercised due diligence in attempting to determine that the licence of the driver was not under suspension prior to allowing her to take his vehicle.

14The onus is on the appellant to demonstrate he exercised due diligence in the circumstances.

15Following the hearing the Tribunal may confirm the impoundment or order the Registrar of Motor Vehicles (“Registrar) to release the vehicle.

Due Diligence

16With respect to the appellant’s exercise of due diligence, it was clear from the evidence presented that he placed a significant amount of trust in his friend. He acknowledged that at the time he let her borrow his vehicle; he had known her for a few years, but that they were not living together or in a romantic relationship. The appellant believed his friend and took comfort in the fact that he had been able to rent a vehicle for her on two separate occasions, using her driver’s licence card.

17The appellant maintained throughout his presentation that he believed that his friend had been truthful with him about being unaware of the status of her driver’s licence. It is difficult to accept that the driver was in fact unaware of her licence suspension given the documentary evidence confirming that the driver’s licence was suspended in November 2019 as a result of being convicted of a driving offence. In any event, whether the driver purposely misled the appellant or whether she was in fact unaware of her licence status does not change the fact that the appellant had an obligation to exercise due diligence to confirm his friend’s driving status.

18The legislation does not set out specifically what is meant by “due diligence”; instead the Tribunal must consider the particular circumstances and assess what a reasonable and cautious person would have done under the same circumstances.

19While I appreciate that the driver may have not been candid with the appellant regarding her licence or may in fact have been unaware of the suspension, I am not satisfied that the appellant did enough to satisfy himself that the driver had a valid driver’s licence prior to allowing her to take his vehicle. The fact that a car rental company had rented a vehicle to the driver on two earlier occasions does not absolve the appellant of his obligations under the Act. The appellant did not confirm with the car rental company that it had made appropriate inquiries about the driver’s licence nor did he himself take any steps beyond asking his friend to confirm her driving status. He acknowledged that he was aware that his friend had been in a car accident. It is unclear whether he asked his friend anything about that accident or inquiry into whether there had been any fallout from the accident.

20The objective of the impoundment legislation is to deter owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles. This is to help ensure road safety.

21I find that a reasonable and cautious person would have taken additional steps to ensure the validity of his friend’s right to drive. He could have checked on the Ministry’s website. He could have asked his friend to provide him with further assurances and he could have asked the car rental company what it had done to satisfy itself that the licence was valid. It was not enough for the appellant to take his friend at her word and to simply confirm that the licence was not expired. In the circumstances, the appellant has not satisfied me that he acted with due diligence such that his appeal should be allowed.

Order

22For the reasons set out above, pursuant to s 50.2 (5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.