Date: 2020-09-21

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 for driving while suspended

Between:

Nicholas Kelford

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Joanne E. Foot, Member

APPEARANCES:

For the Appellant: Nicholas Kelford, Self-Represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: September 2, 2020

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on September 2, 2020 to consider the appellant’s appeal of the 45-day impoundment of his 2017 Dodge van (the “vehicle”). The vehicle was impounded on July 25, 2020.

B. ISSUE

2The issues to be determined are whether:

a. the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle was not then under suspension; and

b. the impoundment results in exceptional hardship to the appellant.

C. RESULT

3On the evidence before me at the hearing, I find that under s. 50.2(3)(c) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), the appellant exercised due diligence in attempting to determine that the driver’s licence of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.

D. LAW AND ANALYSIS

4The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the Act. In this case, the appellant relies on paragraph (c), that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle was not suspended, and paragraph (d), that the impoundment of the vehicle is causing him exceptional hardship.

5If I find that either of the grounds of appeal have been satisfied, I may, pursuant to s. 50.2(5) of the Act, order the Registrar to release the motor vehicle. The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in s. 50.2(3) of the Act.

6The facts in this case are not in dispute. The appellant lives in Smith Falls and has sole custody of his three children, aged 6, 5 and 4. At the time of impoundment, the vehicle was being driven by Ms. Angelina Craig, his former partner and mother of the three children. Ms. Craig lives in a location about 35 minutes away from Smith Falls. On the day of the impoundment, the appellant had taken the children to visit their mother. Ms. Craig took the keys from the pocket of his trousers while the appellant was having a nap. His trousers were on the floor in the room where he was sleeping.

7In exploring whether the ground of “stolen” under s. 50.2(3)(a) of the Act was applicable to the circumstances, the appellant candidly acknowledged that had Ms. Craig asked to borrow the vehicle, he likely would have agreed as he had allowed her to use the vehicle in the past. In particular, he described that about a month prior to the day of the impoundment, when the appellant was visiting Ms. Craig with the children, she had asked to borrow the vehicle to do some grocery shopping. The appellant was aware that Ms. Craig had been in an accident in January 2019 and that her driver’s licence had been suspended as a result but was not aware of the details of the conviction.

8On the occasion of Ms. Craig’s first request to use the vehicle, she indicated to the appellant that she had “got her driver’s licence back”. The appellant asked her for proof that this was the case. Ms. Craig showed the appellant a G2 driver’s licence having an expiry date of 2021. She also showed him a document entitled Prohibition Order dated September 6, 2019, signed by Mr. Justice O’Brien (the “Prohibition Order”). This document resulted from the legal proceedings relating to her accident and prohibited Ms. Craig from operating a motor vehicle for a period of six months, that is, until March 6, 2020. Based on her valid driver’s licence and the fact that the six-month prohibition in the Prohibition Order had expired, the appellant concluded that Ms. Craig was then able to drive legally.

9On cross-examination, the appellant indicated his understanding that Ms. Craig’s physical driver’s licence would have been taken from her in connection with the court proceedings that resulted in the issuance of the Prohibition Order. He also expressed his belief that the driver’s licence Ms. Craig showed him was a new driver’s licence although he did not ask her this question specifically.

10The agent for the Registrar directed the appellant’s attention to a portion of the Prohibition Order that reads “ … the Province of Ontario will suspend your driver’s licence under the Highway Traffic Act for a period of time that may be different or longer than the length of the prohibition order.” The appellant acknowledged that he had not read the Prohibition Order in its entirety and had not seen this wording in the Prohibition Order.

11The agent for the Registrar produced a certified copy of Ms. Craig’s driving record that confirmed her driver’s licence had been suspended until September 6, 2020.

12The appellant was candid and forthright throughout the hearing, answering questions in a clear and consistent manner. His answers were frank, even when these answers did not assist his position.

Due Diligence

13The meaning of “due diligence” is not defined in the Act. Prior Tribunal decisions provide some guidance, stating that there is no absolute standard, but that the required actions depend on the particular circumstances and an assessment of what a reasonable and prudent person would do in the circumstances.

14In this case, the appellant, knowing that Ms. Craig’s driver’s licence had been suspended, sought to satisfy himself that the suspension had ended. In addition to asking her the status of her licence, he looked at her driver’s licence closely to verify that it appeared current, showing an expiry date in 2021. He also reviewed the Prohibition Order and saw that the period of suspension noted had expired several months earlier, in March 2020. The appellant took positive steps to ascertain the status of Mr. Craig’s driver’s licence and I find that the appellant genuinely believed that Ms. Craig’s driver’s licence was no longer under suspension at the time he allowed her to drive the vehicle. I also find that he did what a reasonable and prudent person would have done in the circumstances to determine whether Ms. Craig’s licence was then under suspension.

15It is established that the appellant did not read the fine print on the Prohibition Order. This document is a form designed to be used by the Courts in a variety of circumstances, requiring boxes to be ticked, etc. (some of which were not properly ticked in this case). It is dense and somewhat difficult to understand, particularly for a lay person. I find that this omission on the part of the appellant did not negate – or significantly derogate from - the steps the appellant did take to ascertain the status of Ms. Craig’s driver’s licence.

16I note that that the due diligence ground of appeal requires the due diligence to have been conducted at the time the vehicle is borrowed by the suspended driver. The evidence in this case discloses that the appellant questioned Ms. Craig about the status of her driver’s licence and reviewed her driver’s licence and the Prohibition Order about one month before the incident that resulted in the vehicle’s impoundment. It is my view that it would not be reasonable to require that the appellant exercise due diligence each and every time he permitted Ms. Craig to use the vehicle. His due diligence conducted about one month prior to the impoundment date is, in this case, sufficient to discharge the requirements of s. 50.2(3)(c).

17The intent of the Act is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Section 55.1 of the Act serves as a deterrent to vehicle owners from deliberately or carelessly allowing suspended drivers to drive their vehicles. In this case, the appellant was not careless and he took what were, in the circumstances, reasonable steps.

18I find that appellant exercised due diligence in attempting to determine that Ms. Craig’s driver’s licence was not then under suspension before he permitted her to drive the vehicle within s. 50.2(3)(c) of the Act.

Exceptional Hardship

19Having found that the appellant exercised due diligence in attempting to determine that Ms. Craig’s driver’s licence was not under suspension, there is no need to consider the ground of exceptional hardship within s. 50.2(3)(d) of the Act.

E. ORDER

20For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I order the Registrar to release the appellant’s motor vehicle from impoundment.