An Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1(3) of the Act
Between:
Kimberly Donaldson
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant: Kimberly Donaldson, Self-Represented
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: September 23, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on September 23, 2020 to consider the appellant’s appeal of the 45-day impoundment of her 2010 Dodge Caravan (the “vehicle”). The vehicle was impounded on August 11, 2020.
2The appellant was not driving the vehicle at the time. She loaned the vehicle to her friend, J.O., who was involved in an incident at a motel in Wasaga Beach, Ontario. It was there J.O. was confronted by police and issued a 90-day administrative suspension of his driver’s licence for driving with over 80 mg of alcohol in his blood. This was determined through a breath test administered by the police. Although J.O. was technically not pulled over while driving the appellant’s vehicle, he stated that the police alleged that he was driving just prior to their arrival.
3J.O. normally resides in Alberta and only comes to Ontario in July, August and September each year to assist the appellant with her food truck business. He therefore carries only an Alberta driver’s licence. Despite this, his driving privileges have been suspended in Ontario for a prior criminal code conviction. J.O. has a dated record and was required to complete the Back on Track program from a previous charge. He failed to complete this remedial program, hence, his driving status in Ontario was suspended at the time he was questioned by police.
4Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person, who is driving a vehicle, is under suspension. The vehicle was impounded pursuant to this subsection of the Act.
5The appellant is appealing the impoundment on the grounds that she exercised due diligence (all reasonable efforts) to determine that the driver’s licence was not under suspension or not subject to an ignition interlock condition as a result of a Criminal Code conviction.
ISSUES
6The issue to be determined is:
i. Whether the appellant exercised due diligence (all reasonable efforts) to determine that J.O.’s driver’s licence was not under suspension at the time she loaned her vehicle to him.
CONCLUSION
7On the evidence before me at the hearing, I find that the appellant exercised due diligence to determine that J.O.’s driver’s licence was not under suspension at the time she loaned her vehicle to him.
ANALYSIS
8During the hearing, the appellant testified that she observed a valid Alberta driver’s licence for J.O. with a picture that bore a resemblance to him. She was of the understanding that a person with a valid Alberta driver’s licence may drive a vehicle in Ontario. She further stated that she had no reason to doubt the validity of J.O.’s driver’s licence.
9The appellant called J.O. as a witness at the hearing. He provided his recount of the events of August 11, 2020 when he was confronted by police. J.O. stated that it was not uncommon for him to use the appellant’s vehicle to pick up supplies for a taco truck which he operated for her. When questioned about the status of his licence, he stated that he recalls appearing in front of a Superior Court Justice on April 13, 2015 and thought all outstanding matters had been resolved.
10J.O had difficulty recalling details pertaining to his driver’s licence and the events leading up to the suspension since the criminal code convictions date back to 2000. Nonetheless, I did accept his testimony that he did not check with the Ministry of Transportation after his court appearance and believed the matters were resolved.
11To support her case, the appellant also testified that she came to learn that J.O. was pulled over by Caledon OPP a few weeks before the incident which resulted in her vehicle being impounded. During that traffic stop, J.O. provided his driver’s licence and was released without any notification of his licence being suspended in Ontario. The appellant used this information to further inform her decision to allow J.O. to drive her vehicle as there was nothing to flag any concern in her mind.
12I find this to be a logical assumption anyone would make if informed that a driver was pulled over by police and released. One would reasonably expect that if the driver was not advised or charged with having a suspended driver’s licence, the police accepted his licence as valid at the time of the traffic stop, regardless of the potential infraction he was pulled over for. Therefore, this event did not flag any concerns for the appellant.
13During the hearing, the appellant stated that J.O. comes to Ontario approximately 3 months of the year to help her with her food truck business. I have weighed the fact that as a business owner, the appellant should be aware of the driver’s licence status of J.O. Especially given the vested interest she has in his driver’s status as he assists her with her taco truck business.
14It is the respondent’s submission that the vehicle was impounded lawfully and correctly. Furthermore, it is the respondent’s position that the appellant was not diligent in reviewing the driver’s licence of J.O. prior to loaning her vehicle to him. The respondent did not call any witnesses and did not provide any case law citing similar circumstances.
15According to the respondent, there was no ministry record to indicate that J.O exchanged his Alberta driver’s licence. The respondent also stated that the Ministry provides driver’s licence checks 24 hours a day so that no one finds themselves in a similar situation to that of the appellant.
16The appellant was not aware of this service offered by the Ministry. In the absence of this, I find that there was enough information available to her to assure her that J.O.’s driver’s licence was not under suspension. The viewing of his Alberta driver’s licence in a close time period to loaning her vehicle as well as the fact that J.O. was pulled over by police a few weeks prior without indication of his driver’s licence being suspended would lead a reasonable person to conclude that J.O.’s licence was in proper order to allow him to drive in the province as a non-permanent resident.
17I accept the appellant’s testimony that she would not have allowed J.O. to drive if she was aware of the outstanding requirement for a remedial driving program and find that the steps she took constituted due diligence.
ORDER
18For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) the Act, I set aside the impoundment order.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: November 4, 2020