Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Appeal under Section 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 of that Act
Between:
Glen Lalonde
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant:
Glen Lalonde, Self-represented
For the Respondent:
Leila Pereira, Agent
Heard by teleconference:
November 2, 2022
REASONS FOR DECISION AND ORDER
background
1Glen Lalonde (the “appellant”) appeals the 45-day impoundment of his 2014 Mercedes motor vehicle (the “vehicle”) under section 55.1 of the Highway Traffic Act (the "Act"). The appellant's vehicle was impounded on October 7, 2022, when it was found being driven by Justin Trent Smith, a driver with a suspended driver’s licence.
2The appellant’s grounds of appeal are that he exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was impounded was not then under suspension, and that the impoundment of the vehicle will result in exceptional hardship.
ISSUES
3In accordance with the Case Conference Report and Order, the issues to be determined are:
i. Whether the appellant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was impounded was not then under suspension, under s. 50.2(3)(c) of the Act.
ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
result
4For the reasons that follow, I find that the appellant did exercise due diligence and, pursuant to s. 50.2(5). I therefore order the respondent to release the vehicle.
LAW AND ANALYSIS
Issue – Did the appellant exercise due diligence?
Testimony of the Appellant
5The appellant testified that, on the night of October 7, 2022, he drove the vehicle to Roxanne’s Bar & Grill in Cambridge, Ontario where he and some friends (Josh and Bobby) had some drinks until approximately midnight. Bobby had driven her own vehicle. As they were leaving the bar, the appellant told his friends that, as they had been drinking, none of them will be driving their vehicles, but instead they would use an Uber. At that point Josh told the appellant that a friend of his who was at the bar could drive them the appellant’s vehicle, as the friend, Justin Smith (“Mr. Smith”), had not been drinking.
6The appellant testified that he asked Mr. Smith if he had been drinking, upon which he answered that he hadn’t. The appellant also asked to see Mr. Smith’s driver’s licence, which Mr. Smith showed subsequently to the appellant. The appellant testified that he noted the name on the licence and that the expiry date was in 2023. He then asked Mr. Smith if his licence was suspended, to which Mr. Smith assured him that it was not. The appellant’s friend, Bobby, also asked Mr. Smith if he had a driver’s licence, to which Mr. Smith advised her that he did.
7The appellant subsequently got into the vehicle with Mr. Smith driving. The vehicle was afterward stopped by the Waterloo Regional Police, and impounded.
8In cross-examination the appellant confirmed that he did not contact the Ministry of Transportation or do an on-line check with the Ministry to determine if Mr. Smith had a valid driver’s licence. At the time he did not know that such a service existed.
Evidence of the respondent
9The respondent referred to the Notice to Registrar, dated October 7, 2022, in which Justin Trent Smith is listed as the driver of the vehicle and the appellant as the owner of the vehicle. The Notice to Registrar states the location of incident as Victoria Street North in Kitchener, Ontario.
10The respondent referred to the Extended Driver’s Record Search for Criminal Code Convictions of the driver, dated October 28, 2022. The Driver’s Record Search lists Mr. Smith’s driver’s licence status as Suspended, Cancelled and Unlicensed due to a criminal conviction.
Analysis
12The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that he exercised due diligence in attempting to determine if Mr. Smith had a valid driver’s licence.
13In determining the standard of due diligence in the context of administrative appeals, I agree with the following comments from the Tribunal’s decision in Marshman v. Registrar of Motor Vehicles, 2020 CanLII 95846:
As to what constitutes “due diligence”, the standard was considered by the Supreme Court of Canada in R. v. Sault Ste Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove she took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.
In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held passivity should not be confused with diligence, rather “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.”
14Whether the ground of due diligence has been made out is highly fact-specific, the degree to which efforts are considered to be reasonable will vary with circumstances.
15] I found the appellant’s testimony to be forthright and credible. I accept the appellant’s testimony that he asked to see the Mr. Smith’s licence and was provided with one that was valid on its face. I also accept the appellant’s testimony that Mr. Smith advised him that the licence was not suspended.
16The respondent’s submission on the ground of due diligence was that it should be dismissed as the appellant could have and should have contacted the Ministry of Transportation to determine the status of Mr. Smith’s driver’s licence. In these circumstances, I do not agree with the respondent’s position that the appellant was required to contact the Ministry to look behind what appeared to be a valid driver’s licence. In my view that goes beyond what is expected of the “reasonable person”. This Tribunal has held that an individual need only ensure that the proposed driver has a driver’s licence that is valid on its face. 1
17On the basis of the evidence, I find that the appellant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was impounded was not then under suspension.
Issue – Will the impoundment of the vehicle result in exceptional hardship
18Although it is not necessary for me to address the issue of exceptional hardship as the appeal is allowed on the ground of due diligence, the appellant would not have succeeded on this basis. Alternatives to his own vehicle were available to him, albeit that they were inconvenient. Further, even if no reasonable alternative was available, no testimony was provided that there would be an immediate, significant and lasting economic impact, nor that the impoundment would pose a risk of a threat to the health and safety of anyone ordinarily transported by the vehicle.
ORDER
19On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is allowed and the respondent is ordered to release the appellant’s motor vehicle.
Released: November 3, 2022
Jeffrey Campbell, Vice Chair
1 12280 v. Registrar of Motor Vehicles, 2019 CanLII 101460 at paras. 10-11.```