Licence Appeal Tribunal
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
Between:
Lyndon Paradis Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Lyndon Paradis, Self-Represented For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: March 29, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Lyndon Paradis (the “appellant”) appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on February 25, 2021. At the time of the impoundment, the operator, the appellant’s son Ryan Paradis (“Ryan”), was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appealed on the ground that Ryan’s driver’s licence was not under suspension at the time of the impoundment, and on the ground that the appellant exercised due diligence in attempting to determine that Ryan’s driver’s licence was not under suspension at the time the vehicle was impounded.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
4The sole ground for the appeal listed in the Case Conference Report and Order is the ground provided under s. 50.2(3)(b) of the Act, that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.
5At the hearing, the appellant also took the position that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension under s. 50.2(3)(c) of the Act.
6The respondent objected to the addition of the due diligence ground of appeal. I allowed the appellant to present evidence with respect to the due diligence ground of appeal and reserved my decision on whether that issue could be added.
7The appellant was allowed a full opportunity to present his evidence with respect to due diligence. I have considered the appellant’s evidence, and the law regarding this ground of appeal, and find the appellant did not exercise due diligence as required by the Act. Had I considered that the appellant’s due diligence defence had significant merit, I would have afforded the respondent an opportunity to submit further evidence or submissions as a matter of procedural fairness. Given my conclusion on the due diligence issue, however, no such opportunity was necessary.
EVIDENCE AND ANALYSIS
8The Registrar of Motor Vehicles (the “respondent”) submitted into evidence the Notices to Registrar for impoundments dated February 25, 2021, February 20, 2016, and August 8, 2020, Ryan’s Driving Record, Vehicle Registration for the impounded vehicle, and Notice of Impoundment and Release for the impoundment of February 25, 2021, all under the seal of the Ministry of Transportation. Pursuant to ss. 49 and 210(7) of the Act, those documents were admitted into evidence and accepted, absent evidence to the contrary, for the truth of the facts contained therein. The appellant presented no evidence to contradict the facts contained in the documents filed.
9The Ministry of Transportation’s records disclose that the appellant is the registered owner of the impounded vehicle, a 2008 Chevrolet Silverado, and that at the time of impoundment, Ryan was driving the vehicle while his driver’s licence was under suspension. The Ministry of Transportation’s records indicate that his licence was first suspended on June 24, 2014 and that it continued to be under suspension up to the date of impoundment.
Ryan’s licence was under suspension at the time of impoundment
10The appellant’s position at the hearing was that, although it appears from his driving record that Ryan’s licence was suspended at the time the vehicle was detained, it was not actually under suspension at the time. I do not accept that position for the reasons which follow.
11Ryan’s driver’s licence has been suspended five times since June 2014. Two suspensions were for dangerous driving and three suspensions were for driving while disqualified. On March 7, 2017, Ryan’s licence was ordered suspended twice. Both of those suspensions arose out of driving while disqualified on February 20, 2016. One of the suspensions imposed on that date was to expire June 24, 2020, and the other was to expire on June 24, 2022.
12Ryan testified that he believes that his licence was only supposed to be suspended until June 24, 2020, and that the suspension scheduled to expire June 24, 2022 is an error. He says that he made efforts in 2020 to have the second suspension removed. He says he was told by employees of the Ministry of Transportation that his licence was valid, and at the time of the impoundment he thought his licence was not under suspension.
13The appellant knew about Ryan’s driving history including his history of suspensions. The appellant knew that Ryan was trying to have the suspension expiring June 24, 2022 canceled and thought that he had done so in 2020. The appellant says he believed that Ryan’s licence was no longer under suspension at the time the vehicle was impounded.
14Assuming, for the purpose of the analysis of this ground of appeal, that Ryan and the appellant believed that Ryan’s licence was no longer suspended at the time the appellant’s vehicle was impounded, that goes to the defence of due diligence, not whether the licence was, in fact, suspended at the time of the impoundment. The onus is on the appellant to prove that Ryan’s driver’s licence was not, in fact, under suspension at the time of the impoundment. The appellant has presented no evidence that Ryan’s driver’s licence was not under suspension at that time, only that he and Ryan believed that it was no longer under suspension. Their subjective belief does not overrule the objective fact that the licence was suspended.
15I find that the appellant has not proven on a balance of probabilities that Ryan’s driver’s licence was not under suspension when the vehicle was detained for the purpose of impoundment. The appeal on this ground must fail.
Due diligence
16This ground of appeal requires the appellant to show that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension. Based on the evidence presented at the hearing, I find that the appellant did not exercise due diligence to determine whether Ryan’s licence was under suspension at the time of the impoundment and that the appeal under s. 50.2(3)(c) of the Act fails as a result.
17The appellant knew that Ryan’s driver’s licence was first suspended in 2014 and that he had four subsequent suspensions, three of which were for driving while disqualified. Ryan told him that his last suspension was to expire in 2020.
18Ryan told the appellant that his licence was reinstated in April 2020 and the appellant let Ryan use his vehicle. Shortly after that, Ryan was pulled over by police and advised that his licence was still under suspension until June 24, 2022. After that, Ryan again told the appellant that his licence was reinstated. The appellant allowed Ryan to use his vehicle and Ryan was pulled over by police on August 22, 2020 and told that his licence was still under suspension until June 24, 2022. This time, the appellant’s vehicle was impounded.
19The appellant appealed the August 22, 2020 impoundment. The appellant and Ryan explained the events leading up to the August 22, 2020 impoundment to the Ministry of Transportation’s representatives, Sonia De Santis and Matthew Faucett, and the impoundment was cancelled.
20Ms. De Santis testified at the hearing that she told Ryan and the appellant in September 2020 that, despite the fact that she was agreeing to cancel the impoundment, Ryan’s suspension was still in place and would remain so until June 24, 2022, unless Ryan obtained a court order discharging the suspension. Ms. De Santis gave both Ryan and the appellant the address of a Ministry of Transportation website where they could check to make sure Ryan’s licence was valid before allowing him to drive.
21Ryan says he then spoke with Mr. Franco Alulio, Deputy Registrar of Motor Vehicles, about his licence. He says that Mr. Alulio advised him that he would cancel the suspension. Ryan presented into evidence a letter dated September 23, 2020, from Mr. Alulio which states that two suspensions had been cancelled on the understanding that:
…if upon hearing, your appeal is not allowed or if the Registrar is not served with an Extension of the Order to Stay your driving prohibition or with a new Order of Stay prior to the appeal hearing, you will return your driver’s licence to this office immediately, to be held on file for the balance of the suspension period not served pending appeal.
22However, the suspension identification numbers in Mr. Alulio’s letter were different from the one in place at the time of impoundment. There was no evidence that would explain how Mr. Alulio would have been able to cancel a suspension that was in place since 2017. Ryan denied any knowledge of any Order to Stay or Extension of an Order to Stay with respect to the suspension that resulted in the present impoundment. I conclude that Mr. Alulio’s letter does not refer to the suspension that was in place at the time of impoundment.
23In addition, Mr. Alulio’s letter states that Ryan was required to return his licence and that the suspension would continue if there was no Extension of the Order to Stay or a new Order of Stay. There is no evidence that an extension or new order were obtained or that they were with respect to the suspension in place at the time of the impoundment. So even if Mr. Alulio’s letter was referring to the subject suspension, which I do not accept, there was no evidence that the cancellation was still in place at the time of the impoundment.
24I find that, given the circumstances of this case, the appellant was not duly diligent. Ryan had been charged on five occasions since 2014 with driving while disqualified. Two of those charges were in 2020 after Ryan told the appellant that that his licence was no longer suspended. The appellant was told by Ms. De Santis in September 2020 that Ryan’s licence was still under suspension until June 24, 2022, and that the suspension could only be lifted by order of a court. Mr. Alulio’s letter in September 2020 more likely than not does not refer to the suspension in question, and in any event contained conditions which should have alerted the appellant to the possibility that the suspension was still an issue.
25The appellant should have asked to see Ryan’s driver’s licence and not simply accepted Ryan’s assurances that he had been given one and that it was still valid at the time of impoundment. By failing to do so, the appellant failed to exercise due diligence in the circumstances. Even if the appellant had been shown Ryan’s driver’s licence, given Ryan’s history of driving while disqualified after assuring the appellant that he had a valid licence, the appellant had an obligation to do more. The appellant should have communicated with the Ministry himself in the circumstances or at least accessed the website provided to him by Ms. De Santis to determine whether Ryan’s licence was, in fact, no longer under suspension.
26I find that the appellant has failed to prove on a balance of probabilities that he exercised due diligence in attempting to determine that Ryan’s driver’s licence was not then under suspension when the vehicle was detained. The appeal on this ground must fail.
ORDER
27For the reasons set out above the appeal is dismissed and the impoundment of the vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: April 07, 2021