An 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 the Act.
Between:
Loverajpreet Chahal
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Loverajpreet Chahal
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
August 31, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Loverajpreet Chahal, operates a trucking company for which he employs drivers. He appeals the 45-day impoundment of his 2018 Western Star CNV truck (the “vehicle”) which was being driven by one of his employees. The vehicle was impounded on July 27, 2022, after police found it being operated by the employee (G.S.) whose licence was under suspension for a criminal code conviction.
2The appellant does not dispute the fact that the employee’s licence was under suspension at the time. However, he maintains that as owner of the company and fleet of trucks, he exercised due diligence in attempting to determine that the driver was not under suspension at the time.
3Subsection 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 for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
4The appellant is appealing the impoundment under s.50.2 (3) of the Act:
“That the owner of the 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 impounded] … was not then under suspension…”
5The issue to be determined is whether the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was impounded was not then under suspension.
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that he exercised due diligence as set out in the Regulation in attempting to verify the driver’s licence of his employee.
ANALYSIS
7The appellant operates Kuthala Group Inc., which is a transportation company with a fleet of trucks. One of his employees, G.S., was hired on April 25, 2020. The appellant explained that at that time G.S. had a clear driving abstract. He also possessed a class GZ licence to operate air brakes. In 2021 G.S. upgraded his licence to class AZ. The appellant testified that G.S. attended training from April 27 to May 27, 2020.
8According to the appellant, it is his company’s policy to order drivers’ abstracts on a quarterly basis to ensure there are no suspensions on record. He explained that the last time G.S.’s abstract was pulled in 2021, it showed no suspensions. G.S. then left for an extended visit to India. Upon his return, he went back to the appellant’s company to resume his employment. The appellant explained that since he had G.S.’s abstract on file, a new one was not pulled. He was subsequently permitted to drive again. After a few days, G.S. was stopped by police and found to be operating a motor vehicle with a suspended driver’s licence.
9During cross examination, the appellant admitted to observing convictions on G.S.’s driving record including a prior suspension which was served in full, but noted the licence was not under suspension as of April 2021. The fact that he noted convictions is contrary to his earlier testimony stating that the driving abstract was clear.
10Cross examination also revealed a further inconsistency in the appellant’s testimony when he stated that G.S. was on his first shift when he was stopped by police. The appellant would later clarify that G.S. may have been on his second or third trip after resuming his employment when he was stopped.
11It is the respondent’s position that the appellant’s vehicle was properly impounded in accordance with the legislation. It also confirmed that G.S. requires an ignition interlock device on any vehicle he intends to operate. Such device was not on the truck he was driving.
12The appellant insists that he has no shortage of drivers and would never have allowed G.S. to operate the truck had he known of the suspension. He states that he pulls abstracts for each driver quarterly, although this was not the case with G.S. The appellant took the word of his employee and chose not to request a new driver’s abstract because he had seen one prior to G. S. travelling to India. The timeframe far exceeds that of the quarterly check the appellant refers to. The appellant failed to follow the policy which he established for the company.
13It appears that the appellant took G.S. on his word that he had a valid driver’s licence. Furthermore, the appellant made no other efforts to verify the employee’s driver’s licence, such as contacting the Ministry of Transportation.
14There were also some inconsistencies in the testimony which could not ignored. The appellant based much of his appeal on the training provided by his company and the stringent requirements for the drivers. The failure to pull an up-to-date driver’s abstract for G.S. is the sole responsibility of the appellant.
15In order to successfully prove due diligence, the appellant must meet a high bar (i.e. standard). He must demonstrate that he made every reasonable effort to confirm the driver’s licence of any person who drives their vehicle. I am not convinced on a balance of probabilities that the appellant successfully demonstrated due diligence. In fact, other than rely on a stale driver’s abstract dated over a year before the incident, the appellant did nothing to confirm G. S.’s driving status. There were several of things he could have done including calling the ministry by phone, visiting their website, attending a local office personally and/or attending a Service Ontario Kiosk. The appellant failed to take advantage of any of these options.
ORDER
16For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: October 26, 2022