Date: 2021-08-20

An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Lorna Hagen

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Laura Hodgson, Member

Appearances:

For the Appellant: Self Represented

For the Respondent: Stephen Grootenboer, Agent

Place and date of hearing: By Teleconference July 29, 2021

REASONS FOR DECISION AND ORDER

Overview

1The appellant’s motor vehicle was detained and impounded on May 4, 2021 for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to detain and impound a motor vehicle driven on a highway if the driver’s licence of the driver is suspended for a Criminal Code-related reason. In this case, the appellant’s son was driving the appellant’s motor vehicle.

2The appellant relies on the following two grounds of appeal found in s. 50.2(3) of the Act:

(b) 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; and

(c) that the owner of the motor vehicle 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

3Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant failed to establish that the driver’s licence was not under suspension or that she exercised due diligence. The appeal is dismissed, and the impoundment confirmed.

1) The Driver’s LicenCe was Suspended at the time of impoundment.

4The appellant testified that it was her understanding that her son’s driver’s licence was not suspended when he was stopped on May 4, 2021. The respondent’s evidence included an Extended Driver Record Search for the driver, the appellant’s son. It indicates that his licence was suspended in 2018 and was not reinstated. On February 19, 2021, his licence was then suspended until February 19, 2022 for failure to stop for police.

5The onus is on the appellant to prove that her son’s driver’s licence was not, in fact, under suspension at the time of the impoundment. The appellant has presented no evidence that her son’s licence was not suspended at that time, only that she believed that it was not. This subjective belief does not overrule the objective fact that the licence was suspended.

2) the applicant Did not exercise Due Dilligence in Determining the Validity of her son’s Licence

6The appellant testified that months prior to the impoundment she had asked to see her son’s licence. She testified that she was aware that his licence had previously been suspended. Her son, the driver of the vehicle, testified and acknowledged that he showed his mother an expired licence and covered the date with his finger when he showed her.

7According to the respondent, there is no evidence as to what licence the appellant was shown by her son. The respondent noted that on the Notice to Registrar, completed by the officer at the time of impoundment, the officer indicated that the driver “Failed to Produce Driver’s Licence”. The respondent submits that the appellant’s son would not have had a valid licence for a number of years prior to the impoundment. In the respondent’s submission, the appellant did not take reasonable steps to determine the validity of her son’s licence.

8The due diligence ground of appeal requires the appellant to prove, on a balance of probabilities, that she “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…”

9Due diligence requires the appellant to prove that she took “all reasonable care” (R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326). The Supreme Court has also held that “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.” (Lévis (City) v. Tétreault, 2006 SCC 12 at para. 30, [2006] S.C.J. No. 12 (S.C.C.)). One of the obligations imposed upon a motor vehicle owner under the Highway Traffic Act is to ensure that their vehicle is not driven by someone without a valid driver’s licence.

10This Tribunal has consistently interpreted due diligence to mean that the owner has taken all reasonable steps in the circumstances to ascertain whether the licence was under suspension. The appellant did not take all reasonable steps. At a minimum, the appellant should have determined that the licence she was shown by her son was, in fact, a current, valid licence. According to her son, he covered the expiry date when showing it to her. It is clear that the appellant failed to closely inspect the licence. In these circumstances, where the appellant was aware of her son’s past licence suspension, it was incumbent on her to make a more thorough inquiry than a cursory look at the licence. The appellant has not established that she exercised due diligence.

Conclusion and ORDER

11In all the circumstances, the appellant has not established that the licence was not suspended at the time of impoundment or that she exercised due diligence.

12The Tribunal confirms the impoundment of the appellant’s motor vehicle.