File Number: 12848/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:
Tami Kelly
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICTOR: Jacqueline Castel
APPEARANCES:
For the Appellant: Sherif Foda, Counsel
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: September 16, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on September 16, 2020 to consider the appellant’s appeal of the 45 day impoundment of her 2012 Chevrolet, K15 (the “vehicle”). The vehicle was impounded on August 13, 2020 pursuant to s. 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H8 (the “HTA” or the “Act”). This section allows a police officer to detain and then impound a motor vehicle that is being driven by a person whose licence has been suspended for certain offences under the Criminal Code.
2The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle.
PRELIMINARY MATTER:
3At the outset, Mr. Foda, counsel for the appellant, stated that the appellant would not be contesting the validity of the documents submitted by the respondent, including the Extended Driver Record Search for Criminal Code Convictions for the driver which shows that his driver’s licence was suspended for life in 2001 as a result of blood alcohol content in excess of 80 MGS. He clarified that notwithstanding the Case Conference Report and Order, the sole ground for this appeal would be “due diligence” under section 50.2(3)(c) of the Act.
ISSUE:
4The issue to be determined is whether the appellant exercised 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:
5On 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:
6The 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.
6There 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 pursuant to s. 50.2(3)(c) on the ground that she exercised due diligence in attempting to determine that the driver of the vehicle had a valid licence.
Due Diligence
7The appellant is a 53-year-old registered nurse. She testified that Maurice Roy, the driver of the vehicle at the time of the impoundment, is her ex-husband. She stated that they were married in 2002 and separated in 2014.
8The appellant admitted to being aware that Mr. Roy’s driver’s licence was under suspension when she married him. The appellant stated that she believed, based on information provided to her by Mr. Roy, that his driver’s license suspension would expire in or around 2011, ten years after his conviction for driving while impaired. However, the appellant acknowledged that this turned out not to be the case. She admitted that Mr. Roy was arrested for driving her vehicle while his licence was under suspension in 2013, and the vehicle was impounded at that time.
9The appellant testified that Mr. Roy moved to Quebec in 2014 after they separated, and she had very limited communications with him between 2014 and 2017. She stated that starting in 2018, Mr. Roy began to visit her one or two times a year. She stated that in early 2018, Mr. Roy told her that he had a valid driver’s licence in the province of Quebec and showed her this licence. On cross-examination, the appellant acknowledged that she did not examine the licence closely or view the expiry date. She also acknowledged that she did not make other inquiries to confirm that this licence was valid in Ontario.
10The appellant stated that after viewing Mr. Roy’s Quebec driver’s license she allowed him to drive her vehicle from time to time when he visited her, including on August 13, 2020 when the vehicle was impounded. The appellant admitted that she did not observe Mr. Roy’s Quebec driver’s licence immediately before she allowed him to drive her vehicle on August 13, 2020 but that she did notice the licence in his wallet on the counter at some point in August 2020.
11Mr. Kapur, the agent representing the respondent, submitted that due diligence, for the purpose of s. 50.2(3)(c) of the Act, would require that the appellant verify the expiry date of the Quebec driver’s license she observed and make other inquiries with the police and/or Service Ontario to confirm the validity of the driver’s licence in Ontario. Mr. Foda submitted that due diligence does not require an appellant to exhaust every avenue for confirming the validity of a driver’s licence and that in the context of this case, observing Mr. Roy’s Quebec driver’s licence should be sufficient.
12Although the appellant was a credible and forthright witness, I do not find that she exercised due diligence for the purpose of s. 50.2(3)(c) of the Act. In order to establish due diligence, the appellant must prove that she has 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. In this case, all reasonable efforts go beyond observing an out of province driver’s licence (without paying attention to the expiry date) in 2018 and then glancing at it on the counter at some point in August 2020, but not on the day the vehicle was impounded. In addition to carefully inspecting the appellant’s driver’s licence on the date of the impoundment, given the appellant’s knowledge of Mr. Roy’s driving record in Ontario, due diligence would also require that she make some effort to confirm with the Ontario Ministry of Transportation that Mr. Roy was legally permitted to drive in Ontario with a Quebec driver’s licence.
13Accordingly, I find that the appellant did not exercise due diligence for the purpose of section 50.2(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: September 17, 2020