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:
Polina Slavny
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Kevin Lundy, Member
Appearances:
For the Appellant: Polina Slavny, Self-Represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: February 8, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Polina Slavny (the ‘appellant’), appeals the impoundment of her 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 January 13, 2023. At the time of the impoundment, the driver was operating the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days. The impoundment period is scheduled to end on February 27, 2023.
2On January 16, 2023, the appellant appealed the impoundment to the Licence Appeal Tribunal (the ‘Tribunal’) on the grounds that the appellant 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.
ISSUE TO BE DETERMINED
3The issue to be determined is:
(a) Whether 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 pursuant to subsection 50.2(3)(c) of the Act.
RESULT
4For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.
THE LAW
5Pursuant to section 50.2 of the Act, the owner of a vehicle which has been impounded pursuant to section 55.1 of the Act may appeal the impoundment and request an order that the Registrar of Motor Vehicles (the ‘respondent’) release the vehicle.
6The grounds on which an owner may appeal an impoundment are listed in section 50.2(3) of the Act and include
(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…
EVIDENCE AND ANALYSIS
7The respondent presented uncontested evidence which demonstrates that:
(a) The appellant is the registered owner of the impounded vehicle, a 2022 Ram 1500 Sport pickup truck;
(b) On January 13, 2023, police discovered the impounded vehicle being driven by Kahdeem S. Crossman (‘K.C.’); and
(c) At the time the motor vehicle was impounded, K.C.’s licence was under suspension for failure to complete the mandatory remedial program following a conviction under the Criminal Code of Canada (the ‘Code’).
Due Diligence
8To succeed on this ground of appeal, the appellant must prove on a balance of probabilities that the appellant took all reasonable steps to determine the validity of K.C.’s driver’s licence at the time the vehicle was impounded. Due diligence requires more than an assumption of validity or taking the driver’s word that his or her licence is not suspended. It requires the appellant to take active steps to confirm the absence of a suspension and those steps depend on the circumstances of each case.
9In the present case, the appellant testified that K.C. is a friend of the appellant’s boyfriend and occasionally visits the appellant’s boyfriend at the appellant’s residence. The appellant stated that she was aware that K.C.’s licence was suspended as she had observed police detain him while driving near her home in July or August 2022. While K.C. stated to her that he believed that his driving privilege had been reinstated following his recent release from custody, the appellant was skeptical. She did not, however, confirm her suspicions through the free online or telephone service offered by the Ministry of Transportation.
10Early in January 2023, the appellant followed to Jamaica with her boyfriend for a vacation. She left the keys to the impounded vehicle in their usual storage location in a drawer in her kitchen. While she never directly informed K.C. that she kept her keys in this location, she acknowledged that he may have observed her placing the keys in the drawer or removing them from this place. Aware that K.C. did not hold a valid licence, she did not ask K.C. to drive her to or from the airport but instead used a ride sharing service.
11K.C. had access to the appellant’s residence while she was on vacation as he was assisting with remodelling her other condominium, used as an Airbnb residence. He entered the appellant’s home to retrieve a cable needed at the Airbnb location. He took the keys from the drawer and was stopped by the police while driving the vehicle, leading to its impoundment.
12The appellant recalled that K.C. usually relied on his stepsister to drive him to and from the appellant’s primary residence and the condominium during the renovations. She not did observe K.C. driving after the arrest from the previous summer. She did not discuss the status of his licence with him until the day following the impoundment and never discussed this issue with K.C.’s stepsister. While she did not give K.C. her consent to operate her vehicle, she did not allege that he stole it. She acknowledged that she did not take any steps to secure the keys or move them to a different location.
13In light of all of the evidence, I find that the appellant has failed to demonstrate on the balance of probabilities that she exercised due diligence in attempting to determine that K.C.’s driver’s licence was not under suspension at the time that the motor vehicle was detained in order to be impounded. The appellant knew K.C. had access to the keys and could drive the vehicle while she was away. She failed to take adequate steps to determine whether he had a valid licence. In the circumstances of this case, due diligence required that, before she allowed K.C. to have access to her vehicle, she should have at least asked K.C. to see a valid licence. Given that she suspected, or ought to have suspected, that he did not have a valid licence, she should have confirmed this with the Ministry of Transportation. I find the measures the appellant took do not amount to due diligence.
ORDER
14For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
_______________________
Kevin Lundy
Member
RELEASED: February 21st, 2022