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:
Glenn Batchelor
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Glenn Batchelor, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: January 10, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Glenn Batchelor (the “appellant”), appeals the impoundment of his 2013 Chevrolet Equinox (the “Chevrolet”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). It was impounded under s. 55.1 of the Act on November 19, 2021, because the driver, Nathaniel Larsen, was driving with a suspended licence. There is an additional factor in this case as a 2010 Nissan Sentra registered in the appellant’s name (the “Nissan”) was impounded under s. 55.1 of the Act on April 17, 2021.
2The appellant appeals on the ground that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the Chevrolet at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will cause exceptional hardship.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the Chevrolet is confirmed.
ISSUES TO BE DETERMINED
4The first issue to be determined in this appeal is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.
5The second issue to be determined is whether exceptional hardship under section 50.2(3)(d) of the Act is a ground of appeal available to the appellant.
EVIDENCE AND ANALYSIS
6The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the Chevrolet;
(2) on November 19, 2021, the police discovered the Chevrolet being driven by Mr. Larsen;
(3) Mr. Larsen’s driver’s licence was under suspension at the time the Chevrolet was detained for the purpose of impoundment. Mr. Larsen has never been licenced to drive and has incurred multiple licence suspensions under the Criminal Code since 2019.
Due diligence
7This ground of appeal requires the appellant to show that he took reasonable steps to determine that the driver’s licence was not suspended. In context of this appeal, due diligence required more than making assumptions of the facts. It required steps to be taken to confirm that the driver had a valid licence. Under this ground of appeal, due diligence often requires, at a minimum, the owner to have asked to see a valid licence before permitting the driver to drive the car. The requirement may, of course, be greater depending on the circumstances.
8The appellant says that on November 18, 2021 Mr. Larsen asked if he could borrow the Chevrolet to drive his girlfriend to work the next day. The appellant described Mr. Larsen as “a friend of a friend” and says that he had allowed him to drive the vehicle on previous occasions. The appellant observed Mr. Larsen to be a good driver on those occasions and says he had no reason to believe Mr. Larsen did not have a driver’s licence. He asked Mr. Larsen if he had a valid licence and Mr. Larsen said that he did. The appellant did not ask to see the licence and took Mr. Larsen at his word.
9The appellant had no reasonable basis to believe that Mr. Larsen had a valid licence when he allowed him to drive the impounded vehicle, and the steps he took to determine whether Mr. Larsen had a valid licence were inadequate to satisfy the test for due diligence. In my view, in these circumstances due diligence required, at a minimum, that the appellant examine Mr. Larsen’s licence before allowing him to drive the vehicle.
10The Registrar presented evidence that the appellant was an occupant of the Chevrolet when Mr. Larsen was driving it the day it was impounded. That evidence consisted of the testimony of Constable Brodie Muldoon of the Ottawa Police Service and specifically his description of certain video surveillance obtained during his investigation. That video was not provided to the appellant or the Tribunal. Although the Tribunal is entitled to consider hearsay evidence, I find that it would be unfair to rely on Constable Muldoon’s evidence regarding the video without having produced it to the appellant. Further, given my finding that the appellant has not established that he exercised due diligence, it is not necessary that I consider Constable Muldoon’s evidence regarding the video. I have placed no reliance on that evidence in coming to my decision.
11I find that the appellant has failed to prove on a balance of probabilities that he exercised due diligence in attempting to determine that Mr. Larsen’s driver’s licence was not under suspension when the vehicle was detained. The appeal based on s. 50.2(3)(c) of the Act must fail.
Exceptional Hardship
12The appellant alleges that the impoundment will cause exceptional hardship and argues that his vehicle should be released pursuant to s. 50.2(3)(d) of the Act. Section 50.2(4) of the Act provides that the exceptional hardship ground of appeal is not available if there has been a previous impoundment under s. 55.1 of the Act with respect to any motor vehicle then owned by the appellant.
13The evidence at the hearing was that, on April 17, 2021 the police discovered the Nissan being driven by Tamer Nagib Al-Bakri while his licence was under suspension and that vehicle was impounded for 45 days. The evidence showed, and the appellant admits, that the Nissan was registered in his name at the time of its impoundment.
14According to the appellant, he had sold the Nissan to Mr. Al-Bakri, and was no longer its owner, when it was impounded. He argues that since he was not the actual owner of the Nissan when it was impounded, that previous impoundment should not prevent him from appealing the impoundment of the Chevrolet on the ground of exceptional hardship. I do not accept the appellant’s position.
15First, under s. 50.2(11) and s. 55.1(40) of the Act, “owner” means the registered owner. The appellant admits that he was the registered owner of the Nissan at the time it was impounded. The appellant was therefore an “owner” for the purposes of s. 50.2(4) of the Act.
16Second, I do not accept the appellant’s allegation that he sold the Nissan to Mr. Al-Bakri before it was impounded. Other than his own testimony to that effect, the appellant presented no evidence showing that the Nissan was sold to Mr. Al-Bakri. The appellant did not appeal the previous impoundment and the Nissan continues to be registered in the name of the appellant. The appellant retained possession of the Nissan after he says Mr. Al-Bakri paid him for it and he says Mr. Al-Bakri only obtained possession by stealing the spare key and taking the Nissan in the middle of the night without the appellant’s permission. Even if I accept that Mr. Al-Bakri paid the appellant to purchase the Nissan, both clearly considered that the sale was not complete until the registration and the right to possess the Nissan were transferred.
17I find that the appellant was an owner of the Nissan within the meaning of s. 50.2(11) when it was impounded, and thus the impoundment of the Chevrolet is a second impoundment for the purposes of s. 55.1(3) of the Act.
18The evidence presented at the hearing was that the Nissan was impounded pursuant to s. 55.1 on April 17, 2021. I am therefore unable to consider the exceptional hardship ground of appeal with respect to the impoundment of the Chevrolet on November 19, 2021.
ORDER
19For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg
Member
Released: January 13, 2022